Federal Courts and Nominations

Justice delayed by GOP inaction on U.S. court nominees

Most of us learned in grade school that the Founding Fathers gathered in Pennsylvania in 1787 to hammer out the U.S. Constitution. But how many of us have given serious consideration to our founding charter since then?

This election year gives us good cause to revisit the constitutional guarantees that have embodied the American spirit for two and a half centuries, as it is clear those guarantees must still be vigorously defended.

Given the turbulence of politics today, we should insist that those who seek and hold elective office champion the principles of liberty, justice and equality for all people regardless of color, creed, class or gender.

These are the principles that inspired the founders and guided succeeding generations toward a “more perfect union.”

It’s easy to forget that the Constitution was written by revolutionaries who had only recently cast off the authority of the British crown to win their independence. Those revolutionaries — men from different geographic locations with different social, political, and economic interests — were nevertheless united by an unprecedented reverence for liberty, justice and the general welfare of the people.

Those revolutionaries also had the wisdom to realize that theirs would not be the final words on the exercise of federal power, that the future would pose new challenges, and that, therefore, provisions must be included in the Constitution for adjustments to meet new expectations.

As the decades passed, successive generations did amend the Constitution — 17 times, in fact — beyond the first 10 amendments in the Bill of Rights. Perhaps the most inspiring of those subsequent amendments were ratified during the Reconstruction period. In the five years between 1865 and 1870, the 13th, 14th and 15th Amendments exponentially expanded the boundaries of liberty, citizenship, equal protection under the law and voting rights. Voting rights were again expanded with the 19th Amendment, which gave women the franchise, and the 24th Amendment, which banned poll taxes.

Yet, this election year reminds us of the vulnerability of our constitutional guarantees. Racism and religious bigotry are proposed as government policy. Falsehoods and ignorance are rewarded. Xenophobia is hailed as strength. And voting rights are once again under attack.

Likewise, the Constitution’s promise of justice and due process is being undermined by Senate Republicans’ abdication of their constitutional duty to advise and consent on judicial nominations. Despite an increasing number of vacancies since they gained control of the Senate in 2015, Republicans have confirmed just 22 nominees — a record low since the 1950s when the judiciary was half its current size.

Federal courts around the country are short a total of almost 100 judges. Pennsylvania alone has six federal trial court vacancies, three of which have existed for over three years. The state is also affected by two vacancies on the Third Circuit Court of Appeals, which has jurisdiction over Pennsylvania.

Sixteen of the total pending nominees have been in the pipeline for over a year, and 35 of the pending vacancies are considered to be “judicial emergencies,” which means the courts on which they exist are excessively overburdened.

The refusal of Senate Republicans to hold a hearing, much less hold an up-or-down vote, on the nomination of Judge Merrick Garland to the Supreme Court is especially egregious, paralyzing the high court when the eight justices are evenly divided, and chipping away at the court’s stature and credibility by injecting it with politics.

These judicial vacancies aren’t just a set of numbers. They affect the lives of every man, woman and child in this country who relies on the courts for timely justice on issues, including civil rights, voting rights, clean air and water, and corporate responsibility, not to mention civil and criminal rights.

President Barack Obama — elected by the majority of the people not once but twice — has fulfilled his constitutional duty by selecting qualified judicial nominees, and in many cases, nominees respected by Republicans as well as Democrats.

Yet, Senate Majority Leader Mitch McConnell — with the help of his caucus, including Sen. Pat Toomey — is content to pervert the law to serve his partisan political ends: the hope that a Republican will be elected the next president and nominate a conservative justice to preserve the court’s rightward tilt.

This intentional judicial logjam is unprecedented and dangerous, and Sen. Toomey should reject the willingness of the Senate’s Republican leadership to diminish the judicial system and flout Americans’ ability to vindicate their rights.

So, in honor of our Constitution, signed 229 years ago last month, and the subsequent amendments that have made it ever more faithful to our founding values, let’s rededicate ourselves to its progress and promise and the system of justice we need to make it a reality.

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