Commentary: Senate's injustice to Obama's judicial nominees

One of the saddest spectacles in public life today is the decline and fall of the U.S. Senate, a once-great institution where debate and deliberation over matters of great importance and occasional bipartisan cooperation produced landmark legislation that carried with it the healthy imprint of widespread consensus.

Those were the days, however brief they were. Such periods of statesmanship have waxed and waned over the decades, but we seem to be in a particularly deep trough these days as obstreperous senators place secret "holds" on legislation or key nominations, effectively mounting filibusters that are far more effective than those marathon sessions that segregationist senators waged during the early Civil Rights era.

In doing so the Senate has crippled the administration of justice in courts across the land. Political intransigence on one side or the other has delayed the consideration of badly needed judges for many years, in this state and elsewhere. You can argue all evening over which party is worse about it or where it began, but the fact is that both the Democrats and the Republicans bear responsibility for the failure of the Senate even to act on some judgeships, let alone reject them. For years it kept North Carolinians off the 4th U.S. Circuit Court of Appeals, even though this state is the largest of the five states in the 4th Circuit. It's an important court, handling something like 99 percent of the federal appeals that come from North Carolina, South Carolina, Virginia, Maryland and West Virginia. In 208 years, the state had had only seven judges on the court.

Political rivalries and petty payback kept N.C. judges off that court and out of N.C.'s federal courtrooms, too. But this time, it's not only politics. It's pigheadedness.

Let's look at the 16-year-old history of this sorry episode: In 1994, 4th Circuit Judge Dickson Phillips went on senior status, and President Bill Clinton nominated U.S. District Court Judge Jim Beaty of Charlotte for the vacancy in 1995. But then-Sen. Jesse Helms, no doubt peeved because Democrats had blocked one of his nominees for a judgeship, sat on the Beaty nomination. The 4th Circuit court didn't need any more judges, Helms said.

This back-and-forth prevailed for years. When Democrat John Edwards was elected to the Senate in 1998, he blocked Helms' nominees, and Helms blocked Edwards' nominees for judgeships. One encouraging note of bipartisanship came after Helms left the Senate, and Edwards and Republican Sen. Elizabeth Dole backed Allyson Duncan for the 4th Circuit and she was confirmed.

But when Republican Sen. Richard Burr joined Dole in the Senate, their nominees for the 4th Circuit - District Judges Terrence Boyle and Robert Conrad - were blocked. Boyle's nomination was controversial, but both he and Conrad deserved a Senate vote one way or the other. They didn't get it. That was the Democrats' failure, a childish, obstinate refusal to vote on two experienced judges who are regarded as tough but fair jurists.

When Barack Obama became president, this much changed: The state's two senators, incumbent Republican Burr and newly elected Democrat Kay Hagan, backed both of the president's N.C. nominees for the 4th Circuit. They were N.C. Court of Appeals Judge Jim Wynn (who had been blocked by Helms when President Clinton nominated him in 1999) and N.C. Superior Court Judge Albert Diaz. Wynn, a Navy veteran, was approved by the Senate Judiciary Committee overwhelmingly. Diaz, a Marine Corps veteran who specializes in business cases, was unanimously approved.

But for months their nominations swung slowly in the wind. Democrats asked for unanimous consent in the Senate to move on the noncontroversial nominations. Republicans were disinclined to agree to that, suggesting that Democrats schedule a vote as part of the normal debate process, which takes a lot longer. That resistance was part of a slowdown on judicial consideration that Republicans in the Senate quietly imposed - perhaps in hopes of stalling Democratic nominations in case they win the Senate after the midterm elections Nov. 2.

Remarkably, Wynn was approved this summer, 11 years after his first nomination. He took office in August. But Diaz, backed not only by the president but also the entire Judiciary Committee and his home state's senators, was left to twist in the wind. Efforts to vote on his nomination before Congress left Washington for the election season went nowhere.

The Senate has confirmed fewer than half of Obama's judges; It had confirmed 61 percent of President George W. Bush's nominees at the same point in their presidencies.

In a pointed letter Thursday to Senate leaders, Obama complained they had recessed without confirming any of 23 judicial nominees on its calendar. One of every eight federal judgeships is vacant.

There's one more chance for Diaz in the post-election lame duck session in mid-November, but no one's betting Republicans and Democrats will work it out. The Senate once was called the world's greatest deliberative body. Nobody calls it that anymore - not for judges, anyway. It's a dead end.


Jack Betts is an Observer associate editor based in Raleigh, N.C. He can be reached at: jbetts@charlotteobserver.com

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