As the hot Washington summer approaches August, the Senate’s Republican majority is already on vacation from the work of confirming judges. At the current torpid pace, they will put the lowest number of judges on the federal bench in any year since 1969.
Do you think this crashed system for filling the federal bench has anything to do with the GOP Senate majority’s distaste for the liberal in the White House — even if he was chosen by the American people twice as their president and given the constitutional authority to nominate judges?
Yes, this involves a heavy dose of simple obstruction by the GOP. Keep in mind that if it were not for Republican judges blocking President Obama’s executive order on immigration, the GOP would have already lost that fight. So in a politically polarized nation, Republicans have reason to keep an eye on the partisan make-up of the courts.
That is just one of the many political backroom plots being played out in the Senate over control of the nation’s courts.
The game begins with GOP payback for the Democrats having changed the filibuster rules in 2013 to allow confirmation with a simple majority vote. That “nuclear option” broke the GOP hold on judicial nominations while Democrats still held the majority and cleared the way for 96 judges to take their seats.
Now the GOP holds the Senate majority and Republicans have slammed the lid on new judges from Obama. This makes judicial nominations a valuable point of leverage in future negotiations with the White House over budget issues, regulation and more.
And with a presidential election next year, the GOP hopes to soon have a president of its own sending over nominations, beginning January 2017. Then, there is the reality that four of the five current Supreme Court justices are over the age of 75 — including Justice Anthony Kennedy, the “swing vote.” Republicans have little incentive to allow Obama to put more Democrats throughout the nation’s judiciary.
The extreme Republican anger at the federal courts is already a big issue in the 2016 presidential race. Last week, Sen. Ted Cruz (R-Texas), chairman of the Judiciary Committee’s oversight panel for the federal courts, held a hearing titled: “With Prejudice: Supreme Court Activism and Possible Solutions.” He called the hearing to show the depths of his upset with the recent decisions to uphold ObamaCare and grant same-sex couples the right to marry.
Cruz, a former Supreme Court law clerk, used the hearing to trash a court with a majority of five conservatives, led by a conservative — Chief Justice John Roberts — and by all measures a strongly conservative record in rulings on guns, campaign spending, and blocking Environmental Protection Agency regulation of airborne chemicals.
As a candidate for the GOP’s 2016 presidential nomination, Cruz knows the high court’s standing among Republican voters is low. After the ObamaCare and gay marriage decisions, only 18 percent of Republicans told Gallup last week that they approve of the court. Cruz set the tone for his hearing by saying he wanted to review “options the American people have to rein in judicial tyranny.”
Sen. Cruz is a fan of extreme action to deal with this "tyranny." He is proposing having Supreme Court justices stand for retention election every eight years.
Former Arkansas Gov. Mike Huckabee, another candidate for the GOP presidential nomination, favors term limits.
Sen. Jeff Sessions (R-Ala.) declared during the hearing that the current court has a “foreign, unhistorical approach to law.”
Between the Senate Republicans’ success at clogging the judicial appointment process and the burst of harsh rhetoric, there is a growing risk of a serious erosion of the public trust in the nation’s judicial system.
Obama also is playing the dangerous game.
He has not nominated anyone to fill 47 of the 63 open seats on the federal bench. No doubt he feels it would be a waste of time to keep pushing good money — in this case judicial nominees — down a hole. The president does have seven judicial nominees before the Senate and three would help with the judicial emergencies.
For both liberals and conservatives, the current roadblock has consequences. According towww.uscourts.gov, 28 federal courts have now declared "judicial emergencies" because they lack enough judges to hear pending cases.
This month, the Senate confirmed its fifth federal judge for the year, Kara Stoll. The current Senate is so far behind they have not reached the half-way point to match the previous record low for confirmations, 12, set in President Obama’s first year in office.
The number of judges confirmed during President George W. Bush’s second term, higher than the current rate for Obama, is still less than the number of judges confirmed in the final two years of Presidents Reagan and Clinton.
But now that Republicans are in charge, the Bush record looks generous.
“It’s ridiculous,” said Sen. Patrick Leahy (D-Vt.). He chaired the Senate Judiciary Committee with the Democrats in the majority. “They are trying to politicize the courts. And it’s irresponsible. I refused to do it with President Reagan. I refused to do that with President [George W.] Bush.”
Can the Senate expect better results with a President Hillary Clinton or President Bernie Sanders? How about President Jeb Bush or President Donald Trump? Most likely it will be more of the same — a continuing loss of the bipartisan trust and respect that once made America’s courts the gold standard of justice for the world.