A COURT CONFIRMATION CRISIS WITHOUT PRECEDENT…. I still get the sense that much of the media considers the problems with judicial confirmations somehow routine. Every president wants to do more to shape the courts, so every president complains about the Senate and obstructionism.
It’s why it’s important to emphasize that what we’ve seen over the last two years just isn’t normal at all. There’s a crisis on the courts, and it’s the direct result of Senate Republicans engaging in tactics that no one has ever seen before. We tend to compare Senate confirmation of President Obama’s judicial nominees against the rates of his modern predecessors, and the results are ugly. But the status quo is actually the worst in American history. The Alliance For Justice reports that Obama “has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president in American history.”
Dahlia Lithwick had an item the other day explaining just why this fiasco — which may need to be renamed “a national judicial disaster or the global war on the judiciary” — actually matters.
Whatever side you’re on, the fight over gay marriage will be decided in the courts, as will the fight over regulating carbon emissions. The Voting Rights Act and health care reform laws are under attack in the courts, but so are Arizona’s immigration reform and Chicago’s new gun laws. Whether you support Obama’s legislative agenda or abhor it, having properly functioning courts should matter, because today in America every single legislative action has an equal and opposite legal reaction.
I suppose we can all go on parsing the words “advice and consent” or wish ourselves back to a less partisan era, as ever more seats open up and remain unfilled. But ultimately the judicial-vacancy crisis is a partisan problem with bipartisan consequences. As Nan Aron at the liberal Alliance for Justice puts it, “Every day Americans look to the courts to address problems affecting their daily lives. With the high number of vacancies, their ability to stand up for their rights will be unacceptably delayed.” The increasingly partisan confirmation wars also mean that outstanding nominees are unwilling to put their lives on hold for more than a year, and sitting judges are unable to retire. Justice Anthony Kennedy warned in August that the rule of law itself is “imperiled” if we are willing to sacrifice judicial excellence to partisan politics.
I realize Republicans were upset that they found themselves in a small minority after 2008, and that they resent President Obama for winning an election. But taking it out on the nation and its courts is a problem.
If only the GOP could muster the will to care. It doesn’t matter what these tactics do to the courts. It doesn’t matter what they do to the judicial process. It doesn’t matter what they do to those seeking relief through the system. What matters is one party deciding that they dislike the president so much, they’re willing to break the entire process for entirely petty, partisan reasons.