Next Tuesday marks 125 days since President Barack Obama nominated D.C. Circuit Court of Appeals Chief Judge Merrick Garland, an eminently qualified judge, to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia. The Senate’s inaction on the Garland nomination is the longest a Supreme Court nominee has ever waited for a hearing or confirmation. When the Senate, led by Majority Leader Mitch McConnell (R-KY), reconvenes in September, the wait for a vote—let alone a hearing—will have grown to 176 days.
The blame for this unprecedented delay can largely be placed at the feet of Sen. McConnell. Under his leadership, the Senate has refused to do its job of offering advice and consent on the nominee. Moreover, by this and other actions—or more rightly put, inaction—Sen. McConnell has all but sealed his legacy as an obstructionist.
The impact of this obstruction is already being felt by millions. Because the Senate refuses to do its job, the Supreme Court was unable to settle several important legal issues this term. For example, on June 23, the Court issued a nondecision—a 4-4 tied vote—in a critical immigration case that leaves an estimated 4 million immigrants vulnerable to deportation and more than 6 million citizens fearing deportation of their loved ones.
Since Sen. McConnell assumed the role of majority leader in January 2015, he has shown an unwillingness to make any sort of progress in the Senate, particularly in confirming federal judges. As a result, the number of U.S. District and Circuit court vacancies in the federal judiciary is growing. Vacancies under Sen. McConnell jumped from 40 when he took office in 2015 to 79 in late June 2016, a 97.5 percent increase. Federal courts face severe backlogs because of these vacancies. Plaintiffs alleging discrimination in the workplace must wait longer for their case to be heard; companies accused of violating environmental law go unpunished; and indigent criminal defendants are denied a speedy trial.
McConnell has delayed justice for millions of Americans
The Senate under Sen. McConnell has confirmed judicial nominees at the lowest rate in 30 years.
Sen. McConnell’s obstruction of Chief Judge Garland’s confirmation is particularly shocking when compared with the length of confirmation proceedings for recent justices—even when the presidency and the Senate were controlled by different parties. Although a Republican Senate has not confirmed a Democratic nominee since 1895, Democratic senates have confirmed recent Republican nominees, including Justices Anthony Kennedy, David Souter, and Clarence Thomas. Nominated by a Republican president and confirmed by a Democratic Senate, the three were confirmed in 65, 69, and 99 days, respectively. Meanwhile, Chief Judge Garland has yet to receive a hearing.
The current Senate also lags far behind previous senates in lower court confirmations. The current Senate confirmed just 19 federal judges in the past 18 months. A Senate led by Sen. Harry Reid (D-NV) gave President George W. Bush 68 confirmations over the last two years of his presidency. President Bill Clinton had 73 confirmations, and President George H.W. Bush had 122, including Justice Clarence Thomas, over the same period—also with a Senate led by the opposing party.
Judicial vacancies and emergencies have dramatically increased under Sen. McConnell when compared with the last two years of President George W. Bush’s presidency. During the last two years of President Bush’s tenure, the number of vacancies dropped, and remained below 50, falling to a low of 34 in fall 2008.
The same jump is seen in the number of judicial emergencies, a designation used when an understaffed bench experiences heavy caseloads and severe backlogs. Under Sen. McConnell’s leadership, the number of judicial emergencies jumped from 12 at the beginning of the 114th Congress to 30 as of late June 2016. The Democratic Senate during the last two years of President Bush’s term reduced judicial emergencies from 25 to 15.
The shockingly low number of confirmations allowed under Sen. McConnell, coupled with the sharp increase in judicial vacancies and emergencies, has created a crisis in the judiciary and has denied countless Americans their day in court.
McConnell’s words over the years don’t match his current actions
In recent years, Sen. McConnell has made numerous statements suggesting that he wants to break the deadlock in the Senate and resume normal business:
“For the good of the country, we need to work together to restore the Senate to its purpose.” —Sen. McConnell from the Senate floor, January 2014
“The majority in the Senate is prepared to restore the Senate’s traditions and precedents to ensure that regardless of party, any president’s judicial nominees, after full and fair debate, receive a simple up-or-down vote on the Senate floor. It is time to move away from advise and obstruct and get back to advise and consent.” —Sen. McConnell as Senate Republican whip, May 2005
“The Frist fairness rule guarantees up-or-down votes for every circuit court or Supreme Court nomination, regardless of which party controls the Senate or the White House . . . It guarantees every president that their judicial nominees will get through committee and get a vote on the Senate floor.” —Sen. McConnell supporting the Frist fairness rule, May 2005
“We should also be able to agree that too many judicial posts have been left empty too long. But we cannot confirm judges if they don’t get hearings.” —Sen. McConnell lamenting judicial vacancies, January 2008
McConnell is the problem
Sen. McConnell’s tenure as majority leader has been marked by stagnation. Because of his inaction, federal courts are in trouble. Across the country, court dockets are massively backlogged with judges struggling to keep up. As a consequence, civil plaintiffs and criminal defendants are forced to sit on their hands and watch helplessly as their cases are pushed further and further back.
The Supreme Court deadlocked 4-4 in four important cases during the 2015–16 term. These deadlocks do not establish Supreme Court precedent and have left important issues unsettled, such as the fate of millions of unauthorized immigrants. In other important cases, the Court has chosen to move the cases back to lower courts rather than issue a definitive ruling. The instability on the high court exists only because of the Senate’s refusal to confirm a nominee who is widely recognized as highly qualified.
This crisis in the judiciary can easily be traced back to Sen. McConnell’s obstructionism and his failure to fulfill the Senate’s constitutional mandate to offer “advice and consent.” This inaction is not only dangerous but also deeply hypocritical.
Sen. Mitch McConnell owes the American people an explanation for his blatant obstructionism.
Anisha Singh is the campaign manager for the Legal Progress team at the Center for American Progress. Nathaniel Glynn is a legal intern for Legal Progress and a law student at the Georgetown University Law Center.