After Kagan, Lower Court Vacancy Crisis Looms

by Doug Kendall, President & Founder, Constitutional Accountability Center

During his announcement last week that he would vote in favor of Elena Kagan’s nomination to the Supreme Court, South Carolina Senator Lindsey Graham – the sole Republican on the Senate Judiciary Committee to vote for Kagan – offered the following explanation:
The Constitution puts a requirement on me, as a senator, to not replace my judgment for the President’s…. Are we taking the language of the Constitution, that stood the test of time, and putting a political standard in the place of a constitutional standard?
Graham was of course referring to the intense partisanship that has overwhelmed the Senate judicial confirmation process (or lack-of-confirmation process) in recent years, and that has culminated in an unprecedented level of obstructionism since President Obama took office.   Graham is hardly the only Senator concerned about this paralysis.

In a dramatic showdown on the Senate floor last week, two leading Senate Republicans faced off over Sixth Circuit Court of Appeals nominee Jane Stranch, who was nominated by President Obama way back in August 2009 and was voted favorably (15-4) out of the Senate Judiciary Committee last November, but has yet to receive an up or down vote by the full Senate.  Stranch has the support of Tennessee’s two Republican Senators and last week, Senator Lamar Alexander (R-TN), a member of the Republican leadership, requested unanimous consent for a floor vote on Stranch’s nomination, only to have his own Minority Leader, Mitch McConnell (R-KY), object and override the request.

Meanwhile, for one of the first times since coming to office, President Obama scolded Republicans for their obstruction of judicial nominees during remarks from the Rose Garden, following a bipartisan meeting with congressional leaders earlier this week:
During our meeting today, I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary.  Right now, we’ve got nominees who’ve been waiting up to eight months to be confirmed as judges.  Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans.  Both Democrats and Republicans agreed that they were qualified to serve.  Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.
With this frustration boiling over, several Senate Democrats took to the Senate floor yesterday to protest the unprecedented delays directed against President Obama’s judicial nominees.  Sen. Mark Udall (D-CO) requested consent to hold floor votes on 20 nominees who have been approved by the Senate Judiciary Committee and who are awaiting confirmation, and to each Sen. Jeff Sessions (R-AL), Ranking Republican on the Senate Judiciary Committee, objected.  Meanwhile, numerous other Senators   including several members of the Committee — Ben Cardin (D-MD), Amy Klobuchar (D-MN), Herb Kohl (D-WI), Sheldon Whitehouse (D-RI), and Ted Kaufman (D-DE) — also came to the floor and protested the standstill.  The Senators emphasized the Senate’s long tradition of quickly confirming judicial nominees who have been approved by the Committee and, in particular, those who have the support of their home state Senators – as most of President Obama’s nominees do.  They also emphasized the impact the shortage of judges, especially district (trial) court judges, is having on Americans seeking justice.

These Senators have good reason to be outraged.  By this point in his first term (July 2002), President George W. Bush had had 61 nominees confirmed to the federal bench, to President Obama’s 36, and the Senate took less time to confirm Bush’s nominees on average than they have taken to confirm  Obama’s.   Moreover, consider the following:

  • By this point in Bush’s presidency, 25 of Bush’s nominees had been confirmed within 100 days of their nomination.  Only 2 of Obama’s nominees have been confirmed within 100 days.
  • 39 of Bush’s nominees were confirmed by the entire Senate within a week of being reported favorably out of the Judiciary Committee.  Yet only 2 of Obama’s nominees have reached a floor vote that quickly – and they just happen to be district court judges for Vermont and Alabama, the home states of the Committee chairman and ranking minority member.
  • From the date they were approved by the Senate Judiciary Committee, Bush’s nominees waited an average of 16 days to receive a vote on the Senate floor.  By contrast, the average time from Committee vote to floor vote for Obama’s nominees is 82 days (so far).

What makes these numbers particularly remarkable is that President Bush faced a much more difficult political climate than does President Obama.  Every Bush judge confirmed up until this point in his presidency was confirmed by a Senate controlled by the opposing party.  Obama, on the other hand, has “enjoyed” at least 59 Democratic votes in the Senate throughout his term, yet his nominees have faced a much more difficult path to confirmation.

These disturbing numbers demonstrate that Senator McConnell and his allies have taken the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the President’s judicial nominees. Over the past several decades, Senators in both parties have used an escalating set of procedural tactics to block confirmations, particularly near the end of an out-going President’s term in office. Until the Obama presidency, however, the tit-for-tat game had played out within a category of nominees who were deemed controversial. While there has never been an agreed-upon definition of what that means—it’s an eye-of-the-beholder type of thing—there has consistently been a sizable category of nominees that are not considered controversial. They have typically made it easily through the Senate confirmation process, no matter how rough the ride is for their controversial counterparts.

McConnell’s obstruction of uncontroversial nominees undermines the one part of the judicial confirmation process that was still working, until President Obama took office.  Well-qualified nominees who enjoy bipartisan support should be able to count on a fair and relatively smooth Senate confirmation process. This is critical because, while they’re waiting, the careers of these nominees go on hold. Given the demands of the bench, and the gap between judicial salaries and what these individuals could earn in private practice, the Nation is already lucky that top candidates are willing to serve. If we throw in an unpredictable and lengthy confirmation process, the quality of the federal bench—and the dispensation of justice—will unquestionably suffer.  If this continues, it will worsen an already serious problem of vacancies on the federal courts. And it will discourage from ever entering the confirmation process precisely the type of nominees both parties should want.

As we approach the final confirmation vote for Elena Kagan to this Nation’s highest court, we must not forget that Americans throughout the country desperately need district and circuit level judges to dispense justice, and they depend, as Senator Graham reminds us, on all Senators meeting their constitutional obligation to provide a fair and reasonably speedy confirmation process.

Cross posted on Huffington Post.

This article has been reprinted in the following publications