ON Monday the Senate finally confirmed three federal judges nominated by President Obama last year, thanks to a deal between the Senate majority leader, Harry Reid of Nevada, and his Republican counterpart, Mitch McConnell of Kentucky, to move forward on some of the less controversial judicial nominations.
It was a small but positive step toward solving the vacancy crisis in the federal judiciary system, the result, according to Democrats, of more than a year of Republican obstruction of President Obama’s nominations.
But that’s only half the story. Both the White House and Congressional Democrats have failed to make these nominations a priority — and until they do, the number of empty seats on the bench, and the ensuing courtroom backlog, will get only worse.
The Democrats are right to lay some of the blame on Republicans. In 2009 Senator McConnell made clear his party would filibuster every item on President Obama’s agenda, including judicial nominations.
Republicans have also abused the hold process, by which a senator can block a nomination if he feels an important issue isn’t being addressed. Holds are sometimes appropriate. But Republicans now regularly use them to slow down Senate business, even in cases in which a nominee enjoys bipartisan support.
The result is a judiciary where more than one of every nine positions is unfilled, a rate that is twice what it was when President Obama took office. This puts a strain on the remaining judges, prolongs cases and arguably violates the rights of defendants to a speedy trial.
But the Democrats share a large part of the blame as well. For one thing, the president has named only nine judges for the 17 appeals court vacancies and only 41 judges for the 85 open district court seats. That’s significantly fewer nominations than Presidents George W. Bush or Bill Clinton had sent to Congress by this time in their first terms.
Moreover, unlike President Bush, President Obama has not used his bully pulpit to push for Senate confirmation of his nominations. Fairly or not, President Bush regularly lambasted Democrats for blocking an “up or down” vote on his nominees. Yet for all the recent chatter about a Republican-fueled judicial crisis, the president rarely speaks about the issue in public, and he didn’t mention it in his recent State of the Union address.
Such silence from the White House has repercussions: unless the president speaks up about a relatively thankless task like getting nominations approved, his party’s senators are likely to focus on issues with greater political benefits.
Senate Democrats have also refused to respond to the Republicans’ obstructionism with their own aggressive use of the rules. Though almost all of President Obama’s nominees have had enough support to overcome a filibuster, the Republicans have managed to slow the process to a crawl by deploying an array of delaying tactics, like demanding the full 30 hours of debate allowed after a filibuster is defeated.
This is hardball — but the majority can fight back. For example, the Democrats could push the extra time required by the Republicans’ tactics to the weekends, when the Senate wouldn’t otherwise be in session, forcing the Republicans to feel the pain of the delays. And they could bundle several nominations together, so that they would require a single set of votes and thus allow fewer opportunities for delay.
In the long run, the Democrats could also try to reform the judicial nomination process. In January, Senator Reid promised not to pursue filibuster reform if both sides would agree not to allow holds to be placed anonymously. But partisan holds are still possible as long as a senator puts his or her name on the record, and the Democrats should forbid them entirely from the nomination process.
When a nomination doesn’t have 60 votes and is therefore vulnerable to a filibuster, Democrats should remember the Republican tactics from the last decade and threaten unilateral action to eliminate judicial filibusters altogether. That’s unlikely to happen given last month’s agreement between Senators McConnell and Reid, but the Democrats should be willing to break their promise if the Republicans continue to block President Obama’s nominees. If experience is any guide, it would force the Republicans to back down.
The vacancy crisis on the federal bench is not a partisan issue. Without enough judges, cases are delayed, lives are disrupted and rights are violated. There’s no question that Republicans are at fault — but until President Obama and the Senate Democrats take aggressive steps to counter such obstructionism, they share in the blame.