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Over the years I’ve received several letters from people indicating,
“Even if I win this case now, my business has failed because of the delay. How is this justice?” And the simple answer, which I cannot give them, is this: It is not justice. We know it.
-Judge Lawrence J. O’Neill, Eastern District of California
When the Senate left for August recess, Republican senators took with them self-congratulatory pocket cards that read: “When Republicans took control of the Senate, we promised to get the Senate working again. We are keeping our promise.” It’s not clear what if any specific accomplishments they had in mind, but on the issue of judicial confirmations the talking point is striking in its dishonesty.
After more than eight months of majority control, Senate Republicans have all but abandoned their constitutional duty to confirm federal judges. Instead, they have engineered a politically-motivated vacancy crisis, striving to preserve judicial vacancies for a future Republican president to fill. Last month, Judiciary Committee Ranking Member Patrick Leahy bemoaned the Republican strategy: “We began this year with a new Republican majority in the Senate promising to govern responsibly. Unfortunately, this promise has so far proven hollow. . . . Republican leadership has used excuse after excuse to keep the Senate from voting on those nominated to serve in our justice system.”
This strategy is used to delay and obstruct at every stage of the judicial selection process. In their home states, Republicans let vacancies pile up either by failing to work with the White House to find qualified nominees, or by neglecting them entirely, not even starting the process of screening candidates. In the Judiciary Committee, Chairman Chuck Grassley delays confirmation hearings and committee votes for every nominee, even consensus nominees with bipartisan support. In some cases, Grassley is helped by Republican Senators who initially endorse a nominee from their home state, but then withhold approval—expressed by the return of a “blue slip” to the committee—that would allow a confirmation hearing. And on the floor, Majority Leader Mitch McConnell delays and outright refuses to schedule floor votes for nominees, even nominees who have bipartisan support, or would fill judicial emergencies.
Republican obstruction of judicial nominees is nothing new—indeed it has been a persistent theme throughout President Obama’s administration—but it has become more effective with the power of majority control, yielding staggering numbers that show a complete disregard for the real-world implications of rising judicial vacancies.
As detailed in this report:
- The Senate has confirmed only six judges in 2015, the slowest pace in over 60 years.
- Since January 1, the number of current vacancies has increased by 24, from 43 to 67.
- Since January 1, the number of judicial emergencies has increased 158 percent, from 12 to 31.
- Two judicial nominees pending for over six months, each of whom would fill a judicial emergency, have not had a confirmation hearing.
- 35 of 38 current judicial vacancies without nominees are in states with at least one Republican senator.
- All eight current circuit court vacancies without nominees are in states with at least one Republican senator.
The burgeoning vacancies are the result of playing politics with judicial selection. And the victims are the people and businesses who cannot access courts to seek justice, and the judges who must shoulder the burden of increased caseloads and fewer resources. Eastern District of California Judge Lawrence J. O’Neill, who sits on one of the busiest courts in the country in Fresno, California, said of judicial vacancies: “Over the years I’ve received several letters from people indicating, ‘Even if I win this case now, my business has failed because of the delay. How is this justice?’ And the simple answer, which I cannot give them, is this: It is not justice. We know it.”
Despite this, Senate Republicans have given no indication they will improve and confirm judges over the last sixteen months of Obama’s presidency. But there is one way the president can take direct action. With almost all vacancies without nominees isolated in states with at least one Republican senator, President Obama can and should nominate qualified candidates for as many vacancies as possible, especially where Republicans have stopped working in good faith to fill seats in their home states.