With the election of Donald Trump, there appears to be an assumption in many corners that the unprecedented Republican obstruction of Supreme Court nominee Merrick Garland and numerous other Obama nominees to the federal judiciary has somehow been validated. This assumption is wrong for several reasons.
First, regardless of the presidential election result, the blockade of Garland remains an outrageous act and a stain on both the Senate as an institution and the legacy of its leaders. Garland was and is a superbly qualified nominee who has won bipartisan praise and if there is even a shred of decency left in Senators like Mitch McConnell, Orrin Hatch and John McCain (not to mention Richard Burr and Thom Tillis), the Senate will take up and quickly approve his nomination during the lame duck session that is now underway.
If, instead, the Senate Republicans stick to their cynical strategy of keeping the Supreme Court vacancy unfilled until a president of their party takes office, they will have set a new low in politicizing the federal judiciary and transforming it into a hyper-partisan battleground – a place in which experience, merit and intellect count for nothing and all that matters is whether a nominee is willing to toe an ideological line and answer “litmus test” questions in a prescribed manner.
But things may even get worse. As outrageous and destructive as the Garland blockade has been, the growing possibility that Senate leaders may also choose to block a raft of lower court nominees in the closing weeks of the 114th Congress is utterly beyond the pale.
Consider the following facts about the highly qualified men and women awaiting Senate action:
Right now, 25 lower court nominees have been fully vetted by the Senate Judiciary Committee and have the support of their home state senators. This includes three Court of Appeals nominees, 20 District Court nominees and two nominees to the International Trade Court. All that is necessary is for the Senate’s leader, Mitch McConnell, to allow confirmation votes that could take just a few minutes to complete.
A large percentage of the nominees have been waiting for several months for final consideration of their nominations. Some have been waiting since last year.
Another 28 nominees (four Court of Appeals and 24 District Court nominees) have been stuck in the Senate Judiciary Committee for months. This includes Patricia Timmons-Goodson, who was nominated to fill the nation’s longest standing judicial vacancy in North Carolina’s Eastern District almost eight months ago.
Only eight members in this latter group have even been given hearings before the Committee. Timmons-Goodson is not one of them. While some may dismiss the battle over these nominations as a Washington insiders’ game, the truth is that the blockade has profound and destructive impacts across the country that take the form of delayed or denied justice to citizens and businesses seeking to access the federal courts.
As of November 30, there were 105 federal court vacancies across the country. Two years ago, when Republicans were preparing to take over the Senate there were only 40.
“Judicial emergencies” – which by rule only occur when there are several hundred pending cases per judge on specified courts – have skyrocketed. At the start of the present Congress, there were 12. Now there are 38. The highest number of such emergencies that ever occurred during the George W. Bush presidency – even when Democrats controlled the Senate – was 15.
During the last two years, Republicans have only allowed 22 judicial nominees to be confirmed. These figures are the lowest for any Congress since the 1950’s – a time when the nation’s population was barely half its present size.
In contrast, Democrats confirmed more than three times the number of Bush nominees in 2008 and left no nominations pending on the Senate floor when Congress adjourned. The current situation is unprecedented and outrageous.
Rather than doing their jobs and, at a minimum, providing good and patriotic men and women who are ready, willing and able to serve, the “up or down” votes they deserve and that our system demands, Republican leaders have – at least until now – utterly trashed an important component of Democratic government. With just a couple of weeks left in the lame duck session, let’s hope they have second thoughts before the damage becomes irreparable.
Rob Schofield is the director of research at N.C. Policy Watch.