This weekend, Chief Justice John Roberts continued a tradition begun by his predecessor, William Rehnquist, of ushering in the new year with his annual report on the state of the federal judiciary. Rehnquist himself once explained to his future successor that it’s "difficult to get people to focus on the needs of the Judiciary and January 1 was historically a slow news day—a day on which the concerns of the courts just might get noticed."
Sadly, Roberts also had to renew another tradition begun by his equally conservative predecessor—speaking out for the first time against a mounting vacancy crisis that is slowly hollowing out the halls of justice. At the beginning of 1998, when Senate conservatives were systematically blocking President Bill Clinton’s judicial nominees, Rehnquist rightly put the interests of justice ahead of his own politics, warning in his annual report that "vacancies cannot remain at such high levels indefinitely without eroding the quality of justice."
Twelve years later, the judiciary’s vacancy crisis is far worse than any that Rehnquist presided over. One in 10 federal judgeships was vacant when Rehnquist slammed his fellow conservatives in 1998. Today it is one in nine. Rehnquist renewed his call for faster confirmations in 2002 when 60 judgeships were vacant. That number is 96 today. These skyrocketing vacancies moved Roberts to speak out in this year’s report about the "urgent need for the political branches to find a long-term solution to this recurring problem" of widespread judicial vacancies.
It’s difficult to downplay the significance of Roberts’s decision to effectively call on the Senate to confirm more of President Barack Obama’s judges. Simply put, Roberts is one of the judiciary’s great ideologues. He presided over the Court’s infamous Citizens United decision, which gave corporate America a free hand to buy elections. He also stripped thousands of women such as Lilly Ledbetter of their right to seek equal pay for equal work until President Obama signed a law reversing Roberts’s mistake. And he even voted to allow wealthy corporate CEOs to buy the judges who hear their appeals. So there’s little doubt that Roberts’s personal politics are being advanced by the right’s scorched earth campaign against judicial confirmations.
Senate conservatives immediately began erecting roadblocks in front of President Obama’s nominees when he took office. The 60 lower court judges confirmed since Obama took office add up to only slightly more than half of the judges confirmed at the same point in President George W. Bush’s presidency and less than half the number confirmed under President Clinton. This sudden drop-off in judicial confirmations is unsustainable because it means that federal judges are now retiring far faster than they are being replaced.
The Department of Justice’s Office of Legal Policy estimates that one-half of the federal bench will be empty within 10 years if confirmation rates do not improve. With each new vacancy more and more Americans will wait years for the most basic opportunity to seek justice. Even today, the average civil litigant must wait nearly two years for a jury trial, and this wait grows even longer if their case is appealed.
Backlogs have already become completely unworkable in some parts of the country. Three of the four active judgeships in the Central District of Illinois are currently vacant—leaving the court’s chief judge as its only active member. But the 111th Congress took no action on President Obama’s three nominees to this court.
Lest there be any doubt, America did not get here because President Obama is playing ideological games with the judiciary. He has bent over so far to nominate broadly acceptable judges that only a handful of his nominees have received even token opposition. Yet somehow even the most uncontroversial nominees have become fodder for right-wing obstructionism. Thirteen Obama nominees were denied a floor vote in the 111th Congress even though they cleared the Senate Judiciary Committee without a single vote against them. Most of the blocked nominees were nominated to vacancies classified as “judicial emergencies” by the Administrative Office of the U.S. Courts. Conservatives have even taken to blocking President Obama’s trial court nominees, the first time these relatively low-ranking judges have ever been the subject of such obstructionism.
Those nominees lucky enough to receive a vote often faced months of pointless delays. Conservatives blocked Fourth Circuit Judge Barbara Milano Keenan’s nomination for four months. She was then confirmed 99-0. Second Circuit Judge Denny Chin was blocked by a filibuster threat for months only to be confirmed 98-0. Recently confirmed Fourth Circuit Judge Albert Diaz waited nearly an entire year to be confirmed by a voice vote—a process used to confirm the most uncontroversial nominees.
Roberts’s report could trigger real action, if past is precedent. Rehnquist’s 1998 rebuke shamed the Senate into action, and judicial confirmations nearly doubled in the following year. Still, court watchers should not hold their breath in light of the right’s already unprecedented tactics against President Obama’s nominees.
Unfortunately, Roberts engages in a bit of revisionist history in his report, softening it with a pox-on-both-your-houses claim that “[e]ach political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes.” It is true that Democrats unsuccessfully tried to block a handful of President George W. Bush’s nominees—including one woman who compared liberalism to “slavery” and Social Security to a “socialist revolution,” and another who took thousands of dollars worth of campaign contributions from Enron and then wrote a key opinion reducing Enron’s taxes by $15 million when she sat on the Texas Supreme Court. And it’s equally true that Republicans wielded their 1990s majorities to block many of President Clinton’s appellate court nominees. But the overall number of judicial vacancies under both Clinton and Bush declined during the comparable points in their presidencies. Vacancies under Obama have nearly doubled from 55 to 96.
The good news, however, is that the new Senate will soon have an opportunity to take up Roberts’s call to “find a long-term solution” to the judicial vacancy crisis.
The Senate’s rules empower the minority to force up to 30 hours of wasted floor time for each nominee the majority wishes to confirm. When you multiply this across the hundreds of judges, ambassadors, assistant secretaries, and other jobs a new president must fill it adds up to more time than the Senate is in session for two entire presidential terms. It is literally impossible for the Senate to fill enough jobs to keep the government functioning if the minority chooses to engage in maximal obstructionism.
Because the minority has the power to slow the Senate to a virtual halt they can use this power to extort the majority by holding dozens or even hundreds of nominees hostage until the majority agrees to their demands. During the recent lame duck session, for example, the minority insisted that they be given an effective veto power over four exceptionally qualified nominees before they would agree to confirm any of the uncontroversial nominees awaiting a vote.
So long as the minority can take hostages it will have a strong incentive to keep doing so. Why should they allow more than a handful of nominees to go through—even those nominees supported by a clear majority in the Senate—when they can extract concessions every time a new judge gets their robe?
Senators will have an opportunity to amend the rules by cutting back on the amount of time required to confirm a single nominee when the new Senate convenes in a few days. At the very least, they can require hostage-taking senators to stand on the Senate floor and publicly defend their actions. They should not let this opportunity go to waste.
Chief Justice Roberts is right to worry about a vacancy crisis that will soon become unmanageable if the Senate fails to act.
Ian Millhiser is a Policy Analyst and Blogger for American Progress, where his work focuses on the Constitution and the judiciary.
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