Republican activists choke U.S. courts

The Republican wave that swept through Congress has House victors declaring they’ll kill Obamacare, slash spending, ease up on Wall Street reform and crank out subpoenas to delve deep into administration misdeeds.

But another agenda item looks more likely to succeed. And it will play out in the Senate, where Democrats held on to its majority.

I am talking of federal judges. Pushing the judiciary rightward has been a staple of Republican campaigns for decades.

Senate Minority Leader Mitch McConnell. Associated Press photo

Part of the strategy, used by both parties, is to block judicial candidates named by a president of the opposite party. This became easier last week for Republicans, who were already doing quite well at it.

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices.

This matters a lot. Whether the issue is health care, immigration or regulation, federal judges will decide which provisions are constitutional and which ones must die.

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

They were blocked in the full Senate, often by a single Republican senator, among them Minority Leader Mitch McConnell. Phone calls to his spokesman Monday weren’t returned.

Among the nominees Mitchell blocked is Albert Diaz of North Carolina, named to fill a spot open since 2007 on the 4th U.S. Circuit Court of Appeals, in Richmond, Va.

Given that Diaz has remained unconfirmed for a full year, you might suspect something iffy in his background. But this is a man who enlisted in the Marine Corps at age 17 and earned an undergraduate degree from the Wharton School of Business, a law degree from New York University and a master’s degree from Boston University.

The first in his family to go to college, Diaz worked in the military as a lawyer, joined the national firm Hunton & Williams as a business lawyer and eventually took a special state court judgeship in North Carolina overseeing business litigation.

Bipartisan support

Now 49, Diaz won quick and unanimous approval from the Senate Judiciary Committee. His home state senators, a Republican and a Democrat, sang his praises.

Then his nomination skidded to a halt. It’s been ready for full Senate action since January, and still it waits.

This is Republican payback for the treatment Democrats gave some of President Bush’s nominees, which was payback because Republicans stood in the way of President Clinton’s, which followed — you get the point. It’s an ever-escalating war.

When McConnell blocked a vote on Diaz this summer, he claimed, as if to explain, that the Senate had been acting faster on Obama’s nominees than it did on Bush’s.

First, that’s irrelevant if the point is to put qualified judges into courts that desperately need them.

Second, if it were relevant, it would be wrong. No president in American history has seen as small a percentage of his nominees confirmed within the first 20 months in office, according to the Alliance for Justice, a liberal umbrella group.

And for those eventually confirmed, it took three times as long for district court nominees and five times as long for appellate candidates as it did for Bush’s judges to get from committee approval to Senate confirmation, according to the Senate Judiciary majority staff.

So long have so many vacancies languished that court administrators have declared judicial emergencies in 50 courts. When Bush left office, that number stood at 20. In all, there are 106 vacancies on the 876-judge federal bench, says the Administrative Office of the U.S. Courts.

Republicans aren’t the only ones responsible for that. The White House has been slow to name judges, frustrating Democrats and liberal interest groups who wish Obama were as intent on remaking the judiciary as his predecessor was.

Republican dominance

That Republicans seem to be forever stuck in backlash mode is remarkable given that their nominees dominate the federal appeals courts that shape case law across the country.

Republican appointees have a majority in eight of the 13 appellate circuits. Democratic nominees constitute the majority in three. Two others are evenly split.

If Obama were to fill every vacancy, the partisan balance of those courts would shift from Republican to Democrat in only one circuit.

Nationwide, 59 percent of the country’s federal judges were put on the bench by Republicans, according to the Alliance for Justice.

As for the only court whose rulings affect the whole country, the U.S. Supreme Court, five of the nine justices were named by Republican presidents.

And if Obama gets another chance to put someone on that court, the larger Republican presence in the Senate would influence his next choice more than it did his last two. He might as well simply name a Republican.

Given that federal judgeships are lifetime appointments, the influence of those new Republican senators will last a lot longer and be felt in far more areas of American life than any law the incoming Republicans will enact or repeal.

Ann Woolner is a Bloomberg News columnist.