Is the judicial confirmation impasse impacting American justice?

GWEN IFILL: We turn now to the fight over President Obama's judicial nominations.

Yesterday, for the third time in as many weeks, the Senate blocked the confirmation of a presidential nominee to serve on the U.S. Court of Appeals for the D.C. Circuit, the nation's second highest court. In a June 4 Rose Garden ceremony, President Obama nominated federal Judge Robert Wilkins, law professor Cornelia Pillard, and attorney Patricia Millet. All three have failed to garner the 60 votes needed for confirmation. A fourth nominee, Caitlin Halligan, who is counsel for the Manhattan district attorney, withdrew her name after she was blocked earlier this year.

Republicans say the D.C. Circuit is just too large and that the Senate is fulfilling its advise-and-consent role.

What does the standoff mean for the judiciary?

For that, we turn to: Caroline Fredrickson, president of the American Constitution Society for Law and Policy, and Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.

Welcome to you both.

Caroline Fredrickson, why the impasse?

CAROLINE FREDRICKSON, American Constitution Society for Law and Policy: Well, you know, I think what has happened is there that there's been a complete breakdown in the process, and that the Republicans are unfortunately engaging in an extreme amount of obstructionism.

They have decided that, even though these are vacancies that exist on the D.C. Circuit and have been longstanding on the second-highest, second most important court in the land, they have decided that President Obama doesn't get to appoint nominees to fill these vacancies, and want to leave them unfilled until potentially there's another president.

GWEN IFILL: Carrie Severino, it's just purely partisan?

CARRIE SEVERINO, Judicial Crisis Network: The vacancies in the D.C. Circuit in part are there because qualified nominees like Peter Keisler were blocked by the Democrats for years before going to now. But the fact of matter is…

GWEN IFILL: That was a President Bush nominee.

CARRIE SEVERINO: This is a President Bush nominee.

And the Senate Democrats at the time were talking about the fact that the D.C. Circuit has a very low caseload. It's dead last among the circuits. There are circuits with judicial emergencies with barely enough time to hear their cases and barely enough judges to fill them, so let's focus on those ones first.

GWEN IFILL: What about presidential prerogative to make appointments?

CARRIE SEVERINO: The president absolutely has the prerogative to make appointments. It's the role of the Senate to review those and give their advice and consent.

CAROLINE FREDRICKSON: If I can correct Carrie here, I think we have to remember that President Bush actually filled all these three seats, the Ninth, 10th, and the 11th seat on the D.C. Circuit. He was able to fill those seats.

So, Peter Keisler was blocked, but the other seats were filled. In fact, he filled — he had four nominees to the D.C. Circuit who were all confirmed. And, you know, I think what's clear is that now that the tables are turned and you have a Democrat in the White House, all of a sudden those three seats that were so vital when President Bush was in office are now no longer necessary.

GWEN IFILL: What is it about the D.C. Circuit that is so critical, that is such a flash point? Most people around the country don't understand that.

CARRIE SEVERINO: To just follow up once moment, the rate — the amount of cases per judge is actually the same as it was when those seats were filled. So, we have a consistent — the caseload has declined so much that now we have eight judges, four Democrats, four Republicans.

GWEN IFILL: But what is it about D.C.?


CARRIE SEVERINO: D.C. has a lot of regulatory cases that come through.

The president and the Democrats have pointed to this as they're trying to work their agenda through the regulatory process, and that's where these cases are coming. So you have people like Chuck Schumer saying we're going to fill up the D.C. Circuit one way or the other because they're frustrated with the fact that the court is holding the president's agenda to a constitutional standard.

GWEN IFILL: There is an ideology factor here, isn't there? Didn't Democrats do this in the past?

CAROLINE FREDRICKSON: Well, but at the end of the day, President Bush got his nominees. And I think we have to remember that that is where the court is.

I also want to correct Carrie. Yes, there are four Democrats and four Republicans of the active members. But there are six senior members who take an incredible number of cases in the D.C. Circuit, five of whom were appointed by Republicans. So the ideological balance is quite skewed.

But I think we need to remember that the Judicial Conference, which is the official organization of the courts headed by Chief Justice Roberts, has recommended that all 11 seats be filled, and has recommended that the caseload is appropriate for this court.

It's quite a heavy caseload in the type of matters that they hear, which is these significant regulatory cases that are very comprehensive. And in the caseload — this is an argument that's been disputed on both sides.


CAROLINE FREDRICKSON: But the argument I would like to make is the caseload is actually higher now, according to the statistics we have looked at.

GWEN IFILL: Carrie, the president says that this — these rejections, these obstructive — this blocking of nominees is standing in the way of a fully functioning judiciary. Is the judiciary capable of functioning without these people in these jobs?


The D.C. Circuit has three, four, and five times fewer cases than the busiest circuits. So, it's by no means the busiest. There are judicial emergencies. When the president appointed these nominees, there weren't even nominees for 75 percent of the judicial emergencies.

So I think what Republicans are saying is, let's focus on those first. The D.C. Circuit has so few cases, it regularly cancels sittings because there aren't enough oral arguments that need to be heard by the judges.

GWEN IFILL: Where are the judicial — judicial emergencies and are those jobs being filled?

CAROLINE FREDRICKSON: They're all over the place.

I actually have to say that the situation — the problem is, we have so many emergencies because the obstruction has gone on for so long. And I just want to call out Arizona, where there are — half the seats are empty now. They are all emergencies, all the vacancies, the six out of 13.

And the two senators from that state, even though they were — they sent their names to the White House, and the White House then nominated the people that they approved, are now blocking them to get a hearing in the Senate Judiciary Committee.

So, it's — the problem is — and I agree with Carrie — let's get those other judgeships filled, absolutely. But we can't do it when the Republicans are blocking those people as well.


GWEN IFILL: It seems there are two — there are two options here. One, for people on your side of the argument, is to get — is to shrink the size of the numbers of the — if those are important cases — seats that don't need to be filled, then reduce that, instead of not filling them.

Why not just reduce them?

CARRIE SEVERINO: That actually has been proposed. There's a bill in the House and one in the Senate to move those seats to some of the circuits that do have the emergencies. The 11th, the Ninth all have many more cases than the D.C. Circuit.

And I think that would — that's something that the court — that happened to the court in 2008. And it was a bipartisan vote to move these seats away. I think that would be something that makes sense to happen again.

GWEN IFILL: And, for Democrats, it seems that there's a solution here, too, which is change the rules in the Senate that allows these nominees to be blocked with less than 60 votes.

CAROLINE FREDRICKSON: Well, I think that's coming to a head. I have heard the majority leader today talking about how close it's become.

I think it's sort of the final straw that breaks the camel's back with this record number of vacancies. We have 110 current and future vacancies on the federal judiciary. It's been up there over 10 percent throughout almost all of President Obama's term because of the obstruction and the delays. And I think it's about time that they need to think about, is this a system that works?

GWEN IFILL: Let's take this out. Well, that's my next question, I guess. Let's take this out of D.C. Circuit for a moment. And tell me whether there is a backlog, whether people are not getting true justice because these judges aren't being confirmed for these positions.

CARRIE SEVERINO: You know, President — I hope that Harry Reid does pull the trigger on that, because what's happening now is, he holds the filibuster hostage every time he wants something, without having to abide by the rules.

But then, when the shoe is on the other foot one day and he's going to — he — the Senate Democrats were very liberal in their use of the filibuster, unprecedented level of filibustering of judges. I think we should have the same rules on both — for both teams.


GWEN IFILL: But we could argue about the filibuster all night.


GWEN IFILL: I really do want to find out whether we think that people's lives are being affected by the failure to fill these judicial…


CARRIE SEVERINO: I'm sure there are, yes.

CAROLINE FREDRICKSON: There are 38 judicial emergencies. That's extraordinarily high.

And that means that these are courts that have such high filings that they have been recognized under an official determination by the court system that it's unacceptably high. And that means people have to wait. Those are people with Social Security claims or other…


GWEN IFILL: And you agree?

CARRIE SEVERINO: About half of them don't even have nominees, so let's get nominees for those judicial vacancies. And the D.C. Circuit is not on the list.


CAROLINE FREDRICKSON: Why don't we deal with the 53 nominees who are already up in the Senate? That would be a great start.



Carrie Severino, Caroline Fredrickson, we could argue it all night long, but we won't.

Thank you both very much.