Geof Stone on Obstructionism in Judical Appointments

Republican Obstructionism on Judges
Geoffrey R. Stone
The Huffington Post
August 17, 2010

Article II, Section 2 of the United States Constitution authorizes the president to appoint, "with the Advice and Consent of the Senate," all federal judges. It has never been clear precisely what the phrase "advice and consent" means. In practice, though, at least when it comes to the lower federal courts (that is, all federal judges other than Supreme Court Justices), the Senate historically has taken a highly deferential approach. Until recently, and going all the way back to 1790, the Senate has confirmed more than 95% of all lower court nominees.

In the first year-and-a-half of the Obama administration, however, the Senate has confirmed only 42% of the President's nominees. This is unprecedented.

In the first year-and-a-half of a newly-elected president's term, the Senate historically has confirmed almost 100% of all lower federal court nominees - until the 1950s. Then things began gradually to change. Since1980 there has been a steady decline: Reagan (92%), Bush I (72%), Clinton (67%), Bush II (59%), Obama (42%).

This is a matter of considerable concern. The lower federal courts make tens-of-thousands of decisions each year on issues as wide-ranging as freedom from discrimination, due process of law, religious liberty, freedom of speech and press, crime and punishment, the environment, immigration, workplace safety, privacy, intellectual property, bankruptcy, and access to the political process, to name just a few.