What’s Next After Kagan

More Lower-Court Justices Await Confirmation

Elena Kagan’s confirmation to the Supreme Court belies a looming crisis in the lower courts, writes Ian Millhiser.

Elena Kagan tesifies during her confirmation hearing before the Senate Judiciary Committee on June 29, 2010. Kagan's confirmation is a progressive victory, but many of President Obama's judicial nominees in lower courts are having their confirmations held up by Senate obstruction. (AP/Susan Walsh)
Elena Kagan tesifies during her confirmation hearing before the Senate Judiciary Committee on June 29, 2010. Kagan's confirmation is a progressive victory, but many of President Obama's judicial nominees in lower courts are having their confirmations held up by Senate obstruction. (AP/Susan Walsh)

Yesterday’s confirmation of Solicitor General Elena Kagan to the Supreme Court is an important progressive victory. For the first time in American history three women will sit together on the nation’s highest Court. And Justice Kagan offers an essential counterbalance to a right-wing Supreme Court majority more concerned with immunizing corporations from the law than upholding the Constitution and the will of the people.

Just as importantly, Kagan firmly rejected right-wing senators’ demands that she adopt a radical “tenther” view of the Constitution that would kill health reform and threaten cherished laws such as Medicare and the ban on whites-only lunch counters. Ironically, after decades of railing against judges who “legislate from the bench,” the right is now clamoring for more and more judicial activism. Justice Kagan will be a much-needed obstacle to these efforts.

Kagan, however, cannot protect the Constitution by herself. Our justice system depends on hundreds of scholarly and dedicated judges working together to uphold the law. Nevertheless, a minority of senators are engaged in unprecedented obstruction to prevent even uncontroversial lower-court nominees from being confirmed.

Before President Barack Obama took office, every modern president saw 80 percent or more of his judicial nominees confirmed. Yet fewer than half of Obama’s nominees have joined the bench thanks to rampant filibusters and holds. By this point in George W. Bush’s presidency 72 of his nominees were confirmed, but only 40 Obama nominees have cleared the Senate’s obstruction.

Further, the events of this past week leave no doubt that lower federal courts play an essential role both in ensuring equal justice for all Americans and in defining the country’s political narrative.

On Monday a federal judge in Richmond eviscerated the longstanding rule that political disagreements between state officials and national lawmakers must be resolved in the voting booth—not the courtroom. This decision will only delay the courts’ inevitable rejection of the politically motivated lawsuits challenging health reform, but it provided an unnecessary lifeline to right-wing officials struggling to justify their decision to spend taxpayer dollars on frivolous lawsuits when many states are laying off teachers.

Then, on Wednesday, a federal judge in California—Judge Vaughn Walker—embraced the obvious truth that a Constitution that guarantees “equal protection of the laws” cannot permit gay couples to be treated as fundamentally inferior to straight couples.

Just as significantly, after considering volumes of evidence presented by both supporters and opponents of marriage equality the judge issued findings of fact on issues like whether being gay is a choice (it’s not), whether “ex-gay” therapy works (it doesn’t), whether gay parents do as good a job of raising kids as straight parents (they do), whether gay people have historically been subject to politically handicapping stereotypes (they have), and whether same-sex marriage undermines opposite-sex marriage (it does not).

Questions such as whether a person can change their sexual orientation or whether gay men and lesbians have been subject to irrational stereotyping aren’t just political hot potatoes. The degree of constitutional protection afforded to gay Americans hinges upon these questions. Judge Walker’s commitment to empirical truth could be the key to ensuring that his decision is upheld on appeal because a trial judge’s findings of fact can only be overruled in exceptional circumstances.

The right wing has understood for decades that by controlling the courts they can control the Constitution itself. And they have cynically manipulated the Senate’s rules and traditions to ensure that only their preferred nominees could be confirmed.

During the Reagan administration the Senate followed a longstanding practice allowing senators to block a nominee from their home state, but they could only do this if both home state senators agreed. Conservatives, however, changed the rules in the Clinton administration so that a single senator could unilaterally veto a nominee—enabling Sen. Jesse Helms (R-NC) to block every single one of Clinton’s nominees from North Carolina. When George W. Bush took office the rules changed again, allowing some nominees to move forward even when both home state Senators objected.

Today a handful of senators are successfully blocking President Obama’s nominees by forcing the Senate to choose between confirming judges or completing any other business.

A supermajority of senators can break a filibuster, but once a filibuster is broken, Senate rules still permit up to 30 hours of floor debate before taking a vote. It would thus require nearly two months of uninterrupted, 24-hour days of debate in order to confirm President Obama’s 45 pending nominees. And no other business could be conducted during this entire period. When you also factor in the more than 100 executive branch nominees awaiting a vote plus the need to actually enact appropriations and legislation, it is simply impossible for the Senate to get more than a fraction of its work done in the face of blanket obstructionism.

So while Elena Kagan’s high-profile confirmation is an important accomplishment, dozens of other nominees continue to languish below the radar. Unfortunately, abuse of the Senate’s rules could doom all of those nominees to a permanent state of limbo.

Ian Millhiser is a Policy Analyst at American Progress.

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Ian Millhiser

Senior Fellow