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As Senate prepares to confirm Sotomayor, many judicial vacancies remain unfilled

WASHINGTON — As the Senate prepares today to make Sonia Sotomayor the first Hispanic justice on the U.S. Supreme Court, dozens of other judicial vacancies remain unfilled, a backlog created by a fledgling presidential administration but also an increasingly partisan nomination process.

Sotomayor will be the first of President Barack Obama's nominees to clear the process. More than 80 federal court of appeals and district court judgeships need to be filled, and many more vacancies are expected. But Obama has nominated only nine judges in his first six months in office, despite enjoying a commanding Democratic majority in the Senate.

Only three are ready for a full vote of the Senate. And Republicans have managed to put those on ice, a sign that measured GOP opposition to Sotomayor is only a prelude to more intense battles over the nation's courts. She has more than enough support ahead of today's scheduled 3 p.m. vote.

The sluggish pace is nothing new — Presidents Bill Clinton and George W. Bush faced similarly high vacancies early on — but the effect is noticeable nationwide, including in Florida, where two district court positions are vacant.

"The sooner the better, as far as we are concerned," said Anne Conway, head U.S. District Judge for the Middle District of Florida, which runs from Jacksonville to Fort Myers.

The court has been down a judge for more than a year since Susan Bucklew left her Tampa post to become a senior judge. Obama did not nominate her replacement, Hillsborough County Circuit Judge Charlene Honeywell until June 25, and the nomination has not budged because of Sotomayor.

Already one of the busiest in the nation, the Middle District has had to call in reserves. About 20 judges from across the country have handled civil motions electronically, and judges from Minnesota and Tennessee have traveled to Florida for trials.

The criminal case load has been handed to Judge John Steele, based in Fort Myers. Steele has 79 cases of his own and has taken on 60 more. Nationally, the average district judge handles 91 cases.

"Come September or October, we'll start worrying," Conway said.

She knows the feeling. Conway was nominated in July 1991 by the first President Bush, but was not confirmed until that fall because the Senate took up the Supreme Court nomination of Clarence Thomas.

The bitterness of that confirmation process still lingers, as does the unsuccessful nomination of Robert Bork in 1987.

Republicans, who vowed revenge after the Bork meltdown, have made their own stands. Clinton saw scores of nominees hung up after the Democrats lost control of the Senate. Democrats retaliated with the filibuster of appellate nominee Miguel Estrada in 2003, who Republicans thought could one day be the first Hispanic on the Supreme Court.

"It is my hope that starting today, we will no longer do what was done to Miguel Estrada," Florida Sen. Mel Martinez said Wednesday in a speech in favor of Sotomayor. Even so, his fellow Republicans largely will vote against her.

Republicans sent a letter to Obama in March bemoaning a "needlessly acrimonious" nomination process and pledging to work with him. But the letter threatened stalling and other tactics if Obama did not consult on nominees.

"It's gotten more and more acceptable and even expected for senators to either oppose nominees or hold them up for ideological reasons," said Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst who specializes in judicial politics.

He cites the rise of advocacy groups, both liberal and conservative, that have used their clout to pressure elected officials.

The National Rifle Association is a good example in the current climate, warning Senate allies against backing Sotomayor, whom the group considers unfriendly to gun rights.

"The lesson here for Obama is he really needs to move quickly," Goldman said. "And the Democratic Senate leadership has to really work."

For now there is a lot of finger-pointing.

Sen. Patrick Leahy, D-Vt., who heads the Judiciary Committee, blames Republicans for the holdup of the three nominees, not including Sotomayor, by simply threatening to use stalling tactics.

"I can't understand it. It's irresponsible," Leahy said.

A ranking Republican on the committee, Sen. Orrin Hatch of Utah, acknowledged that his party was miffed with Democratic opposition, including then Sen. Barack Obama, to Supreme Court nominees Samuel Alito and John Roberts.

"We were not treated fairly," Hatch said.

Some Republicans are gearing up for a fight over Obama's first ever appointee, made way back in March: Indiana Judge David F. Hamilton to the 7th U.S. Circuit Court of Appeals in Chicago.

Despite having the support of Indiana Republican Sen. Richard Lugar, Hamilton was branded by conservative groups as "anti-life" and "anti-Jesus." In 2005, he ruled that the Indiana Legislature could not open its meeting with overtly Christian prayers.

Hatch insists his party will not act as obstructionists. "Republicans will vote for good people. We realize he won the election, and I doubt seriously if there will be a lot of logjams."

A logjam hasn't happened because Obama's team has been slow to act.

"One would think with the majority, the administration could gain some momentum if they had more nominees," said Stuart Gerson, a Republican who worked in the first Bush administration.

Still, the White House has kept pace with recent presidents. It takes time to establish a vetting process and a Supreme Court nomination is even more complicated, officials say. A White House spokesman said that more names will start to flow after Sotomayor is confirmed.

"There's a lot more scrutiny now for judicial appointees," said Larry Sabato, director of the University of Virginia's Center for Politics. "If you nominate a bad apple, you're going to get a lot of bad publicity. It's not worth it."

Alex Leary can be reached at

GOP splits

Republican Sens. Kit Bond of Missouri and Judd Gregg of New Hampshire broke with their party Wednesday to announce they would vote for Sonia Sotomayor's Supreme Court nomination, saying while they may disagree with her, she is well-qualified to be a justice. Previously uncommitted Wyoming Sens. Mike Enzi and John Barrasso both said they will vote no.

Associated Press

As Senate prepares to confirm Sotomayor, many judicial vacancies remain unfilled 08/05/09 [Last modified: Wednesday, August 5, 2009 10:08pm]
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