Courting Disaster: GOP Obstruction and The Courts

Terrance Heath

Yesterday I wrote about how obstructionist Republican tactics are hollowing out our government, hobbling its agencies, and diminishing its responsiveness to the needs and concerns of ordinary Americans. Nowhere is this more apparent than in our court system, where Republican obstructionism may have far-reaching, disastrous consequences for public policy. And, again, that’s just fine with Republicans.

With 82 empty seats in our federal district and appellate courts, nearly 10 percent of federal judicial seats are vacant, and have been since President Obama took office. That’s the longest period of judicial vacancies in 35 years. Judicial vacancies have increased 51 percent since President Obama took office, compared to declining by 65 percent and 34 percent under Bill Clinton and George W. Bush, respectively.

To make matters worse, 40 percent of those vacancies are in districts that have been declared “judicial emergencies” — where vacancies have persisted for 18 months or more, and the hundreds of backlogged cases wait for someone to rule on them. Businesses and individuals wait longer for their claims to be resolved.

In the 35 circuits/districts declared “judicial emergencies,” people are literally waiting for justice, and often end up settling for something less. Since federal judges must give priority to criminal cases (which have increased by 70% in the past ten years), they’re forced to delay civil cases for years. According to a People for the American Way fact sheet, “Overloaded Courts, Not Enough Judges: The Impact on Real People,” that means longer delays for Americans seeking justice in cases involving:

  • discrimination
  • civil rights
  • predatory lending practices
  • consumer fraud
  • immigrant rights
  • environment
  • government benefits
  • business contracts
  • mergers
  • copyright infringement

For Dave Calder, in Utah, it meant a long wait for justice after a faulty gas can exploded in his trailer, killing his daughter and leaving him with severe burns over a third of his body. He sued in 2007. His medical bills reached $200,000 during the 4 1/2 years that passed before the case reached a jury verdict.

For Elizabeth and Nicholas Power, in Illinois, it mean settling for far less, after suing their employer for sex discrimination in 2008. By the time the case finally reached jury selection in 2011, the judge had to halt the trial in order to deal with a growing docket of criminal cases. The Powers settled the case, rather than continue to wait for a trial

It’s not that there aren’t nominees waiting. There are 22 judicial nominees just waiting for Senate confirmation. Their confirmations would fill 1/4 of the vacancies on the bench, and increase diversity of the federal (9 are women.) Of the 22 nominees, 13 were unanimously approved by the Senate Judiciary Committee, and 15 are waiting for Senate floor votes. (The rest are still waiting for hearings.)

Judicial nominees are probably in for a long wait. Some may sail through committee, but just about all them can expect long waits. In fact, President Obama’s judicial nominees have waited much, much longer than those of his predecessors. Obama’s judicial nominees wait an average of 116 days for a floor vote in the Senate, compared to an average wait of 34 days for President George W. Bush’s nominees.

That’s just the average. Some waiting periods are “above average.”

It’s not that the Senate has not confirmed President Obama’s nominees. It’s just confirming fewer than it has under previous administrations; just 160 during Obama’s first term, compared to 200 during Bill Clinton’s fist term and 205 During George W. Bush’s first term. Late last year, the Senate went into recess without any action on 19 non-controversial nominees with support from both parties.

In just four years, judicial vacancies are up, confirmations are down, and delays are longer. What gives?

To hear Republican Senators tell it, the White House is at fault for presenting fewer nominees, due to time-consuming background checks and an incredibly extensive vetting process. But despite those factors, the president isn’t far behind his predecessors. Obama offered 215 nominations in his first term, compared to 247 in Bill Clinton’s first term, and 231 in George W. Bush’s first term.

It’s not up to the president alone to nominate potential judges. Senators have always had a role in the process. Republicans have simply refused to participate in recommending potential nominees.

On its face, the absence of nominees would appear to be a sign that President Barack Obama is slacking. After all, he is responsible for nominating judges, and he did put forward fewer nominees at the end of his first term than his two predecessors. But a closer look at data on judicial nominees, and conversations with people involved in the nomination process, reveals the bigger problem is Republican senators quietly refusing to recommend potential judges in the first place.

The process for moving judicial nominees is simple enough. A president takes the lead on circuit court nominees, while, per longstanding tradition, a senator kickstarts the process for district court nominees, which make up the bulk of the federal court system. Senators make recommendations from their home states, and the president works with them to get at least some of the nominees confirmed — the idea being that senators, regardless of party, are motivated to advocate for nominees from their states. The White House may look at other nominees on its own, but typically won’t move forward without input from the corresponding senators. Once a nominee is submitted to the Senate, he or she receives a vote in the Senate Judiciary Committee. If approved, the nomination heads to the Senate floor for a full vote.

According to a fact sheet from the Alliance for Justice, the majority of judicial vacancies without nominees are in states with one or more Republican senators (24 in states with two Republican senators, 17 in states with 1 Republican and one Democratic senator). Some of those states, like Texas and Arizona, have judicial vacancies that have been open for more than 1,000 days, without their Republican senators recommending potential nominees.

In total, 25 of the 61 vacancies without nominees are in states with two Republican senators, and another 14 are in states with one Republican senator and one Democratic senator. Seventeen are in states with two Democratic senators, and the remaining five are in other districts. That means many of the vacancies without nominees can be traced back to Senate Republicans who just aren’t participating in the process — a reality that flies in the face of Republicans’ chief complaint that Obama isn’t putting forward enough judicial nominees.

“It’s disingenuous at best for Republicans to complain about the number of judicial vacancies without nominees when Republicans themselves are responsible for the majority of those vacancies,” said Michelle Schwartz, director of Justice Programs for Alliance for Justice. “Nearly two-thirds of the vacancies without nominees are in states with at least one Republican senator, most of whom have consistently refused to work with the White House in good faith to identify qualified candidates.”

It’s not hard to figure out what Senate Republicans are up to here. Some of it’s just good old fashioned “payback,” for Democrats blocking nominations during the George W. Bush administration. But a big part of it is about blocking Obama’s effort to shift the rightward tilt of our courts, starting with powerful U.S. Court of Appeals for the District of Columbia, where four vacancies leave the second-most-powerful court in the country with a Republican majority. Republicans blocked Obama’s previous nominee for 2 1/2 years, before the nomination was finally withdrawn.

President Obama has pressed senators from both parties in recent weeks to confirm a new federal judge for one of the country’s most powerful courts, using an aggressive strategy to campaign for a judicial nominee whom White House officials consider a potentially crucial figure in boosting the president’s second-term agenda.

The effort reflects a new White House effort to tilt in its favor the conservative-dominated U.S. Court of Appeals for the District of Columbia Circuit, which is one notch below the Supreme Court and considers many challenges to executive actions.

… Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.

The D.C. Circuit, with four Republican and three Democratic appointees, has four vacancies. It proved an obstacle for Obama during his first term – blocking proposed rules, for instance, to curb interstate air pollution and enhance cigarette labeling. The court also has put on hold dozens of cases relating to rules on workers’ rights, and it has challenged the president’s authority to name recess appointees.

For working Americans and their families, vacancies and the conservative majority on the D.C. Circuit Court has serious consequences. In January of this year, the conservative majority on the D.C. Circuit Court ruled that President Obama’s recess appointments to the National Labor Relations Board were invalid. The president resorted to the recess appointments after Republicans blocked nominations, to keep the NLRB from issuing rulings. In March, the court’s conservative majority overturned an NRLB requirement that employers put up posters explaining to workers that they have a right to unionize, because it violated employers “freedom of speech.”

Naturally, Republicans want to keep the U.S. Court of Appeals for the District of Columbia stacked with conservatives.

The D.C. Circuit Court of Appeals is known for its conservative leanings. Republicans like it this way and have filibustered nominations of non-conservative-movement nominees to the court. Now four seats are vacant. An April editorial in the Washington Post, Republicans’ D.C. Circuit barricade, explains,

LAST MONTH Senate Republicans unjustifiably blocked an up-or-down confirmation vote on Caitlin J. Halligan, nominated by President Obama to fill one of four empty spots on one of the country’s top courts, the U.S. Court of Appeals for the District of Columbia Circuit. Despite her impeccable credentials and the support of conservative legal luminaries, only a single Republican voted to break a GOP filibuster.

Again, Republicans are keeping four seats on this court vacant in order to keep these kinds of rulings coming.

In their continued efforts to block President Obama from doing what voters elected him to do — and what they failed to convince voters to elect them to do — Republicans are courting disaster for million of Americans, by keeping our nations courts and government agencies running on empty.

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