CRISIS ON THE COURTS…. Supreme Court Justice Anthony Kennedy recently noted the problems with the Senate’s inability to confirm judicial nominees. “It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”
That conclusion is clearly true, though I’m not sure if I’d attribute the problem to “congressional indifference.” Policymakers care a great deal about the issue, which in turn leads to the fights that bring the confirmation process to a standstill.
The result is scandalous: “A determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Barack Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago.”
The American Constitution Society, Center for American Progress, and the Constitutional Accountability Center released a memo on this yesterday, detailing the “crisis” on the courts, resulting from “rampant filibusters, anonymous holds, and constant procedural delays.”
It paints an ugly picture, in which President Obama’s nominees simply can’t get votes, because Republicans refuse to allow them. While the White House has often been too slow to send nominees to the Senate, once those nominees are there, they’re subjected to a ridiculous process that leaves them in indefinite limbo. From the report: “On average, President Bush’s appellate court nominees waited an average of 24 days to be confirmed after being favorably reported out of the Judiciary Committee, but President Obama’s appellate nominees wait an average of 116 days.”
Making matters worse, Senate Republicans frequently delay consideration of uncontroversial nominees for months, only to see those same judges get confirmed unanimously.
There is no modern precedent for such nonsense.
Why should you care? Because there are real-world consequences.
Much attention gets paid to Supreme Court nominees, deservedly so, but the lower federal courts are truly “the courts of last resort” for most Americans. These courts are where everyday people turn to uphold their rights — where they turn for justice.
When vacancies on these courts go unfilled, there are not enough judges to handle the workload. In the Second Circuit, ten judges are handling the work of thirteen. In Colorado, five district court judges handle the work of seven. Many of these courts are already completely overworked: Justice Kennedy highlighted the Eastern District of California, where five judges are handling a workload of fifteen judges. Still, a nominee to that court, Kimberly Mueller, who was reported out of the Senate Judiciary Committee in early May without opposition, has now been waiting four months for a vote on the Senate floor, with no end in sight. In fact, more than half of the currently pending nominees have been nominated to fill seats declared “judicial emergencies” — vacancies that severely threaten a court’s ability to do its job.
These vacancies needlessly delay justice for thousands of Americans. According to the Administrative Office of the U.S. Courts, the federal judiciary now requires nearly nine months to resolve a single civil case, and much longer if the case is appealed or if it requires a full trial on the merits. This long wait for justice will skyrocket even further if judicial vacancies are not filled.
When the Senate returns next Monday, there should be no more delays for delay’s sake. If a senator objects to a nominee, he or she has the right to vote “no.” But justice cannot be held hostage any longer by senators who simply refuse to cast their votes.
I’d just add that this is bound to be even worse next year, when the Senate’s Democratic majority is smaller, if it exists at all.