And it?s not tit for tat, as we often hear claimed. My colleague Todd Gaziano of The Heritage Foundation?s Center for Legal and Judicial Studies says the average time a nominee has waited for final Senate action has grown substantially over the years but never more starkly than during President Bush?s term. President Reagan?s first 11 nominees to the appeals court waited 39 days for action. The first 11 of President George H.W. Bush waited 95 days; the first 11 under President Clinton, 115 days. And all of those judges were confirmed.
President Bush?s nominees have waited, on average, more than 400 days and barely a quarter of them have been confirmed.
And what does this mean to us mere citizens? It means judges now routinely take shortcuts to whittle down their workloads. Instead of three judges being required to rule on an appeal, the courts go with two. Perhaps that third judge would?ve seen something -- pro our side or pro their side -- that the others didn?t. Maybe not always, but we put the number at three for a reason.
Others cancel oral arguments on what they perceive to be unimportant or routine cases. A lot of times they don?t realize how important a case is until oral arguments. Others spend less time per case, dole out more work to clerks or simply pass bad law right on down the line to be dealt with later.
Courts now are looking into whether judges in the 6th Circuit Court of Appeals deliberately kept a spot vacant to help the pro-set-asides contingent in one of the University of Michigan diversity cases.
Who is hurt most by this chicanery? Poor or minority litigants, say Gaziano and others. Rich folks have the best lawyers. They can write briefs that will convince overworked judges looking for shortcuts to go their way. The poor may well find themselves losing cases precisely because their senators refuse to fill vacancies on the federal bench out of nothing but political spite.
That?s why I say: Up or down in 60 days. Why is that so hard?