So why is Scott Matheson not sitting on the 10th Circuit today? Because he and many other Obama nominees have been denied a floor vote by Republican leaders in the Senate more interested in throwing sand in the Senate's gears than in ensuring that justice is done for the people of Utah. This is simply unacceptable. Every American should expect a properly functioning court system to deliver timely answers to the legal problems that confront them, not a system that buckles under the weight of partisan politics.
By this point in his presidency, 77 of President George W. Bush's lower court nominees wore black robes. In contrast, only 41 of Obama's lower court nominees have been confirmed so far, while more than 100 vacancies have piled up on the federal courts.
Part of the explanation for this is Obama's slow pace of nominations. But the most acute reason for this low total has gotten far too little attention: the waiting time Obama nominees face when they reach the Senate floor. The 77 Bush judges confirmed by this date in 2002 waited an average of 22 days to be confirmed after being favorably reported out of the Senate Judiciary Committee. Obama's confirmed judges have waited more than four times that long, an average of 90 days. And that's not counting the more than half of Obama nominees, like Scott Matheson, who are still waiting for a floor vote.
It is not news to say that Senate rules are easy to abuseso easy, that senators can, if they choose, effortlessly use uncontroversial nominees as pawns in an obstructionist game. While it is well known that 60 votes are required under the Senate's filibuster rules to get nearly anything done in the Senate, it takes 100 votes ("unanimous consent" in Senate lingo) to get things done quickly. Using a combination of these two rules, Senate Republican leaders have slowed the confirmation process down to a trickle.
The question now is how this all ends. There are more than a score of well-qualified judicial nominees like Scott Matheson pending on the Senate floor, and, with the upcoming elections, very few days on the legislative calendar for these confirmation votes to take place. There is no reason why those votes should not take place before next Wednesday when the Senate adjourns for more than a month. At the very least, those votes must take place by January, or nominees like Matheson will face an entirely duplicative and unnecessary confirmation process in 2011.
The good news is that Hatch and Bennett can do something about this. Specifically, they can emulate the example set by their colleague, GOP Sen. Lamar Alexander of Tennessee, who went to the Senate floor this summer to call on his Republican leadership to allow a floor vote for Jane Stranch, another Obama judicial nominee, supported for confirmation by Alexander as well as by his fellow Tennessean, Republican Sen. Bob Corker. Republican leaders relented, finally granting Stranch a floor vote on Sept. 13, resulting in her easy confirmation.
When it comes to the nomination of Scott Matheson as well as every other qualified pending judicial nominee the people of Utah and America's system of justice deserve nothing less than a prompt vote on the nomination.
Doug Kendall is president of Constitutional Accountability Center, a Washington-based think tank, law firm and action center dedicated to fulfilling the progressive promise of our Constitution's text and history.