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Since Carter years, judicial confirmations have slowed

Quick and lasting relief in the form of more judges for an overburdened federal court in Arizona appears doomed by Washington, D.C., politics.

Richard Weare, clerk of the court for U.S. District Court in Arizona, said the Jan. 20 declaration of a judicial emergency, which will loosen speedy-trial rules for about 25 percent of federal criminal cases, will not solve the court’s excessive caseload problem.

“We have too few judges and too many cases,” Weare said. “Hopefully, this will bring some attention to the need to fill the existing vacancies.”

And while it is possible the judicial emergency might grab the attention of Washington, it will likely be months before the three vacancies in Arizona’s federal trial court will be filled.

The time it takes for a judicial nominee to be confirmed has steadily risen over the years from about two months to almost a year in the administration of President George W. Bush, and President Barack Obama hasn’t been successful in breaking that trend.

Senate Democrats claim Republicans used parliamentary tricks in the last term of Congress to block Obama’s qualified judicial nominees, while Republicans contend they were powerless to force any blockade.

Don Carle, a spokesman for Sen. Patrick Leahy, D-Vt., who is chairman of the Senate Judiciary Committee, said Republicans used “secret holds” to block dozens of nominees.

Senators, with permission from caucus leadership, are allowed to block legislation or nominees by secretly placing a hold.

Sen. Claire McCaskill, D-Mo., alleged in April that 80 nominations at the time were blocked by secret holds. McCaskill has fought to put an end to the secret holds.

Ryan Patmintra, spokesman for Sen. Jon Kyl, said Kyl didn’t use secret holds on Arizona’s lone nominee last year, Judge Mary Murguia, whose confirmation took nine months.

Other senators may make use of the holds, Patmintra said.

Patmintra said the majority leaders control the legislative and committee schedules, and Republicans are powerless to control the nomination process.

“They’re trying to play politics in a situation where none exists,” Patmintra said.

Before he was killed in the mass shooting in Tucson on Jan. 8, Judge John Roll had requested a declaration of a judicial emergency to extend the definition of “speedy trial” from 70 to 180 days.

The Judicial Council of the 9th Circuit on Jan. 20 granted the request until Feb. 19, but the U.S. District Court has applied for a year-long suspension of the Speedy Trial Act.

The emergency suspension applies to only defendants who are not jailed. Weare said 75 percent of the defendants are in jail, so the relief will be limited.

In the meantime, the court will be hostage to the balky confirmation process.

Reports by the Congressional Research Service show that since about 1990, confirmations are taking longer, and the percentage of confirmations has declined.

As of Oct. 20, 2008, the date of the report on Bush’s nominations during the second half of his second term, he had an 86.8 percent success rate while President Bill Clinton batted 84 percent.  Presidents Ronald Reagan and Jimmy Carter got about 93 percent of their nominees confirmed while George H.W. Bush was down at 78 percent.

Meanwhile, the average number of days from nomination to confirmation for courts of appeals increased from 69 in the Carter administration to 350 for George W. Bush. The number of days for confirming district court nominees also increased over the years from 71 for Carter to 178 for Bush.

The Senate confirmed 60 judges in 2009 and 2010, and 43 nominations were sent back to the president at the end of the congressional term without a vote. Nineteen of the 43 who were returned had already gotten the approval of the Senate Judiciary Committee and were awaiting a floor vote, according to Erica Chabot, a Leahy spokeswoman.

Two of Arizona’s judges illustrate how slowly the process has been moving.

The first shows that the Senate is not the only source of the dawdling.

Judge Frank Zapata of U.S. District Court for Arizona vacated his seat in August, and the Arizona Democratic congressional delegation immediately sent the name of Rosemary Marquez, a Tucson attorney, to Obama, said U.S. Rep. Ed Pastor, D-4th Congressional District.

“That name went to the president,” Pastor said, “and it’s still there.”

Judge Mary Murguia sat on the U.S. District Court in Arizona when she was nominated by Obama in March 25 to fill a spot on the 9th Circuit Court of Appeals.

The Judiciary Committee had hearings on July 15 and sent her nomination to the full Senate on Aug. 5.

She was confirmed 89-0 on Dec. 22 along with 18 other judges, many of whom had also been waiting months for confirmation.

“That seemed to be the pattern,” Chabot said.

Pastor said the need for more federal judges in Arizona goes back two to three years.

“Politics get in the way,” Pastor said. “These are used to broker deals.”

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