The GOP Plan To Obstruct Judicial Nominations

Most of the time, we’re focused on elections as determinative of important political outcomes. But political majorities are fleeting, and judges are lifetime appointments. The American system has a built-in status quo bias that makes big changes difficult to achieve. However, if Republican obstruction and administration indifference continue, the conservative domination of the federal bench could dramatically alter the country for years to come.  -- Adam Serwer

Remember when Republicans were adamant about ensuring that judicial nominees received an "up or down" vote?  In those days the Democrats were using the filibuster effectively to thwart some of George W. Bush's wackiest right wing judicial appointments.

Back in 2005, as People for the American Way pointed out, Republicans argued that use of the filibuster in such circumstances was not just wrong, it was unconstitutional.  They threatened to employ the so-called "nuclear option," which would have changed the Senate rules to preclude filibusters for judicial nominees.  Of course, the Democrats blinked.

Seven Democrats joined seven Republicans to form the "Gang of Fourteen," and signed an agreement in which the Republicans in the gang would not vote for the nuclear option and the Democrats would not filibuster except in "extraordinary circumstances."  In practical terms this meant that Bush was able appoint the conservatives he wanted to the bench and the Democratic minority, without the seven members of the gang, could not stop him.  As a result, many right wing conservatives, very young right wing conservatives, who could have been stopped by filibuster became judges, including, most notably and tragically, Supreme Court Justice Samuel Alito.


And now that the Democrats have the Presidency and the Senate?  Regular readers of this blog are familiar with my rants about Republican obstruction and Democratic apathy, which have resulted in an alarming number of federal judicial vacancies.  (See, e.g., Tit for Tat; Courting Failure; Lame and Lamer; Vacant and Lame.)  While early this year a bipartisan agreement was allegedly reached to speed up the process, Senate Republicans are continuing to block votes on non-controversial, qualified nominees.

Approximately one in nine federal judgeships are now vacant.  As ThinkProgress reports, the Senate recessed having "confirmed only half of the 38 judicial nominees awaiting a vote on the Senate floor," despite the fact that an "the overwhelming majority of the blocked nominees cleared the Senate Judiciary Committee without a single negative vote."  This is "culmination of a concerted GOP strategy to delay as many of President Obama’s judges as much as possible, and it leaves Obama with fewer judges confirmed than any recent president."

This Republican effort goes back to the Reagan Administration, when conservatives began to understand the importance of the judicial nomination process in transforming the federal judiciary for their political purposes.  By successfully pushing young, extremely conservative nominees, Reagan, followed by the two Presidents Bush have been able to completely reshape not just the Supreme Court, but the lower federal courts throughout the country.  When Clinton was president, the courts were simply not a priority.  Rather than extend his precious, if mythical, political capital, he sought to avoid bruising confirmation battles by appointing mostly moderates and not putting up a fight when Republicans challenged more liberal nominees.  Obama, like Clinton, has been far less aggressive than his Republican predecessors in pushing for judicial appointments.

And so here we are.  Adam Serwer writes that not only does Obama have "the lowest judicial confirmation rate of any president in the last forty years" but that "of the judges Obama has confirmed, few of them are young, which means that they’ll need to be replaced sooner rather than later."  He cites Emily Bazelon, who wrote that “Republicans have appointed 41 federal appellate judges under age 45 to the Democrats’ 10. Bush placed 13 judges in this group. Obama, so far, has zero.”

This has real life consequences.  As Serwer says, "if Bush v. Gore didn’t convinced liberals of the importance of the judiciary, the legal precariousness of the Affordable Care Act should get liberals to wake up about its importance."

Like so many other issues it remains incomprehensible why Obama and Senate Democrats aren't more aggressive in pushing this process forward.

Visit JudicialNominations.org to learn more about the judicial vacancy crisis, follow developments and take action.