Senate GOP Now Has a Majority. It Shouldn’t Stand in the Way of Judicial Diversity

Your Take: If Republicans want to be part of a “do something” Congress, they should make confirming the president’s judicial nominations—and diversifying the federal bench—a top priority.

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DeKalb County, Ga., Judge Eleanor Louise Ross testifies in front of the U.S. Senate Judiciary Committee. President Barack Obama nominated Ross to the U.S. District Court for the Northern District of Georgia in December 2013.

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After a hugely consequential election, the Senate returns today to complete the work of the 113th Congress. With more than 90 vacancies in the federal judiciary, confirmations of federal judicial nominees should be a top priority. And it’s important to note that of the 34 nominees pending before the Senate, nine are African American.

The Senate should move quickly to diversify North Carolina’s all-white district court bench and confirm the first black women to Georgia’s federal bench. African-American nominees to district courts in California, Connecticut, Pennsylvania and Texas should be confirmed by the end of the session. 

In the wake of last week’s election, as Republicans prepare to take the reins in Congress, they should vocally reject the idea—which many have speculated that they will embrace—of slowing down or even halting the judicial confirmation process. That kind of obstruction would be wholly inconsistent with the message of opposition to gridlock on which many of these senators campaigned. The new leaders should begin their tenure with a commitment to considering and confirming judicial nominees in regular order.

To do otherwise would fly in the face of precedent. In the final years of recent two-term presidencies, judges were confirmed at respectable rates, even when the opposing party controlled the Senate. As the Alliance for Justice has noted, approximately 20 percent of the judicial appointments by Presidents George W. Bush, Bill Clinton and Ronald Reagan were confirmed in their last two years in office.

A Democratic-led Senate confirmed 68 judges in the last two years of the Bush administration, including 10 circuit court nominees. A Republican Senate confirmed 73 of Clinton’s nominees, including 15 circuit court nominees, during the same time period. In 1987 and 1988, a Democratic Senate confirmed a total of 84 of Reagan’s nominees, including 17 circuit court nominees.

The number of judicial vacancies does not rise or fall according to the political calendar. Federal judges retire or move to senior status for a variety of reasons; a vacancy can also occur upon the death of a judge serving in active status. It is incumbent upon the Senate to discharge its “advice and consent” obligation under the Constitution as soon as possible after a seat opens and a nominee is selected. This practice benefits the smooth administration of justice and minimizes the backlog of an already overburdened judiciary.

Continuing to fill vacancies throughout a president’s entire term also advances diversity on the federal bench. President Clinton appointed nine African Americans to the appellate courts; four of those appointments were made in the last two years. Indeed, Clinton’s final appellate confirmation occurred in July 2000, when Johnnie Rawlinson became the first black woman on the U.S. Court of Appeals for the 9th Circuit, the largest circuit court in the country. Earlier that year, a Republican Senate confirmed the last two of Clinton’s seven Latino appointees to the appellate bench: Richard Paez and Julio Fuentes.

President Barack Obama has made historic strides in diversifying our federal courts; we fully expect his extraordinary efforts to continue over the next two years. Come January, the new Senate leaders should ensure that they are on the right side of history and contribute to that progress. The likely new Senate majority leader, Mitch McConnell, promised in his postelection remarks that things will get done: “This gridlock and dysfunction can be ended.” We hope that this commitment to leading a “do something” Senate will extend to the long-standing practice—and tradition—of confirming judges throughout the president’s second term.

The Root aims to foster and advance conversations about issues relevant to the black Diaspora by presenting a variety of opinions from all perspectives, whether or not those opinions are shared by our editorial staff.

Leslie Proll is director of the Washington, D.C., office of the NAACP Legal Defense and Educational Fund, Inc. Follow her on Twitter.