As the Republican Senate has brought judicial confirmations to a standstill, refusing even to hold a hearing for Supreme Court nominee Merrick Garland, and confirming lower court judges at a historically slow rate, the most obvious explanation for all the obstruction has been politics: Republicans would rather spite President Obama and preserve judicial vacancies for a Republican president than ensure a fully-functioning judiciary. But for Thom Tillis, the Republican Senator from North Carolina and member of the Judiciary Committee, the problem appears to be (for better or worse) an alarming amount of misinformation, whether it be the importance of filling judicial vacancies, how bad the vacancy crisis has become under GOP leadership, or the Senate’s basic constitutional duty to confirm judges.
On Wednesday, just before the Senate left for a seven-week vacation, Tillis objected to voting on slate of uncontroversial judicial nominees because, in his words, confirming judges has “nothing to do with doing our jobs.” That startling claim would certainly surprise the Constitution’s drafters, who wrote that the Senate must provide “advice and consent” on judicial nominations, and Democratic members were no less shocked. “I’m not sure what version of the Constitution you’re reading that doesn’t say confirming judges is part of your job in the United States Senate,” Senator Elizabeth Warren said. Senator Mazie Hirono added, “Of course confirming judges is part of the Senate’s job. In fact, only the Senate can do that.”
Tillis added insult to injury during the Judiciary Committee’s business meeting yesterday, when he defended the GOP majority’s dismal record on judicial confirmations. Tillis first repeated the already-debunked Republican talking point that more judges have been confirmed under President Obama than under President George W. Bush at this point in their respective presidencies. As someone who claimed during the meeting a “reputation as a data geek,” Tillis ought to know that using raw numbers without meaningful context is useless. What matters is not just the number of confirmed judges, but that Obama has confronted far more vacancies than Bush faced, and that Obama’s judges have been confirmed at a lower rate. While Obama has so far been tasked with filling 410 vacancies, Bush only faced 377 vacancies throughout his entire two terms.
Tillis also argued that the number of vacancies is just not that high. That is patently false. Vacancies have increased from 43 to 83 just this Congress. Obama has roughly twice as many vacancies as George W. Bush at this same point in their respective presidencies and roughly one-third more than President Clinton had. Vacancies decreased for Clinton and Bush during their final two years, despite facing opposition Senates. Clinton and Bush had 73 and 68 judges confirmed in those last two years, respectively, thus causing vacancies to trend downward.
Perhaps Tillis’ belief that filling judicial vacancies is not part of his job explains why the nation’s oldest vacancy is in his home state of North Carolina. Judge Malcolm Howard took senior status nearly 4,000 days ago (pre-dating the first iPhone by a year and a half), yet upon joining the Senate, Tillis refused to recommend candidates for the vacancy and now refuses to support, without any substantive reason, Patricia Timmons-Goodson, who was nominated by President Obama to the seat earlier this year.
It’s true that vacancies have been high throughout the Obama administration, often lurking around 90 or 100 as they are today. But that can be traced back to Republican obstruction as well, even with Democratic majorities in the Senate. Indeed, the easiest way for senators like Tillis to ensure that judicial confirmations are not part of their job is to prevent the president from making nominations in the first place. At this, Republican Senators have excelled.
By slow-walking their own identification and screening processes for potential nominees, or refusing to even begin those processes, GOP Senators have effectively thrown a wrench in the judicial confirmation process before nominations are even made. Because of these tactics, 74% of judicial vacancies without a nominee are in states represented by at least one Republican senator.
Senate Republicans have obstructed judicial nominees to an extent never before seen. They’ve placed partisan politics over filling longstanding vacancies in an effort to prevent Obama from having any influence on the courts. Their obstruction has harmed the fair administration of justice across the nation and in their own states. But hey…if confirming judges has nothing to do with your job, then why should Senator Tillis care?