On Thursday, the Senate Judiciary Committee sent seven more of President Obama’s judicial nominees to the full Senate for a final vote. They are joining 16 others currently stuck in procedural quicksand, blocked from confirmation by an intractable and shameless Republican minority.
The clock is ticking, though, on breaking the logjam and getting a vote on any of them before the Senate heads for the exits to go home and campaign. Sadly, it’s our badly overburdened judicial system that’s getting trampled as Congress rushes out the door.
There has always been a political aspect to the nomination of judges, especially at the appellate level. It’s a natural consequence of a process that requires Senate confirmation. But today we are facing unprecedented obstruction from Republicans that crosses the boundary from the acceptably political to an outright assault on long-standing traditions and, more importantly, on the functioning of the federal judiciary itself.
The evidence for how bad things have gotten is spelled out in Alliance for Justice’s new report on judicial nominations that covers the Obama Administration’s first 20 months in office.
The report shows that President Obama has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president on history. Nominees are held up with secret holds, even those from states where Republican Senators support them. Uncontroversial nominees are reported out of the Judiciary Committee unanimously or with very little opposition, but then are put into the procedural deep freeze and denied a final vote, often for months. Republicans who voted for the nominees in committee then turn around and participate in a deliberate strategy to prevent them from actually taking their seat on the bench. It’s getting hard to tell if these are judicial appointees or hostages.
Obviously, the Republicans’ desire to obstruct is not based on concerns about qualifications, or, in some cases, even ideology. It’s just naked, unabashed obstruction for obstruction’s sake. This is a new level of crass political theater that has never before been applied broadly to all judicial nominees, especially those at the district court level. Senator Sheldon Whitehouse in yesterday’s hearing talked about this trashing of long traditions of Senate behavior, reminding the committee (apparently to no avail), “that when the two home state Senators approved a nominee, when it cleared the background check, and when it cleared the committee, they got a straight up or down vote on the senate floor without procedural obstruction, period…. By erecting a blockade of procedural obstruction for district court nominees …it is a new threshold that we will cross.”
But there’s more to this than just political squabbling. There is a genuine crisis in the federal courts. Every time a judicial appointment is delayed, a courtroom remains without a judge.
There are now 49 official “judicial emergencies” in 22 states, where there simply aren’t enough judges to hear the cases that have been filed in a timely manner. Thousands of plaintiffs and defendants, many of whose lives and livelihoods depend on the outcome of their case, face long delays. If the principle that “justice delayed is justice denied” is true, then it must be said that Republicans are contributing to the undermining of American justice itself. They may think they’re punishing President Obama with their shenanigans, but the collateral damage extends to the American people who are entitled to their day in court.
With the Senate clock ticking away, 23 nominees are waiting for a vote and 23 courts are waiting for a judge.
Perhaps before Senators go home to ask voters to re-elect them, they should do what they were elected to do in the first place and perform their constitutional duty of fully staffing the federal courts.