Sustained Outrage

Does America care about the judicial vacancy crisis?

The Senate returned from its August recess yesterday, and spent part of the day discussing the nomination of Jane Branstetter Stranch, a Tennessee lawyer up for a seat on the Sixth Circuit Court of Appeals. When they took up a vote, Stranch was confirmed by a margin of 71-21. (West Virginia Sen. Carte Goodwin, who spoke on behalf of his late father in Charleston on Monday morning, hustled back to Washington in time to vote in favor of Stranch’s confirmation.)

Stranch passed out of the Judiciary Committee on Nov. 19, meaning that she had to wait almost 10 months before getting a vote. With her confirmation, the dubious distinction of the longest pending nomination passes to Albert Diaz, a North Carolina judge tapped for the 4th Circuit and approved by the Judiciary on Jan. 28. As I’ve noted before, Diaz went through the nomination and hearing process together with James A. Wynn Jr., another Tarheel nominated for the 4th Circuit. But in a somewhat inscrutable move, the Senate confirmed Wynn but not Diaz just before the August recess.

President Obama took office almost 20 months ago. In that time, 43 of his nominations to the federal bench (including two Associate Justices on the U.S. Supreme Court) have been confirmed by the senate. As this Judicial Selection Snapshot prepared by the Alliance for Justice points out, Obama’s two immediate predecessors met with considerably more success during their first 20 months in office. At the same point in their tenures, Bill Clinton and George W. Bush had nominated 123 and 122 judges respectively. At the end of August, Obama had secured 40 confirmations, compared with 83 by Clinton and 74 by Bush II.

Last week, Dahlia Lithwick published this piece on Slate.com, which discussed why the judicial vacancy crisis created by the agonizingly slow pace of confirmations is an important issue that doesn’t seem to register with the public. Despite a solid Democratic majority in the Senate, the number of vacancies has grown under Obama, she wrote.

But who’s at fault for the judicial-vacancy standoff is only half the story. The real problem lies in convincing Americans that it matters. With expensive and acrimonious judicial-election campaigns on the rise, and the years-long attacks on “activist judges,” Americans can’t be faulted for thinking that fewer judges might just be a good thing. It’s hard to sell a judicial-vacancy crisis to a nation that isn’t always sold on the judiciary.

There is clearly an enthusiasm gap over all things judicial. By the time he left office, President George W. Bush—even facing a Democratic Senate—had seated almost a third of the federal bench. Bush cared passionately about reshaping the bench, and he expended political capital to do so. Surprisingly for a constitutional lawyer, Obama seems to feel differently. But for all the complaints about judges who insert themselves into the legislative and cultural life of the country, judicial “activism” clearly cuts both ways. Whatever side you’re on, the fight over gay marriage will be decided in the courts, as will the fight over regulating carbon emissions. The Voting Rights Act and health care reform laws are under attack in the courts, but so are Arizona’s immigration reform and Chicago’s new gun laws. Whether you support Obama’s legislative agenda or abhor it, having properly functioning courts should matter, because today in America every single legislative action has an equal and opposite legal reaction.

In an article published Monday on Salon.com, Joe Pace noted that almost half of the judicial vacancies have been declared “judicial emergencies” by the Administrative Office of the U.S. Courts. “Obama’s confirmation rate is so bad, in fact, that due to retirements, the percentage of Republican-nominated district judges has actually gone up on his watch,” he wrote. While Republicans blame the slow pace of presidential nominations for the increase in vacancies, Pace noted, this doesn’t explain why pending nominees (like Diaz) face such long waits.

Nor can they seem to explain why they are rejecting the judges. Agree or disagree with their justifications, Democrats at least told us why they opposed a Bush nominee. (A rare but notable exception was the declaration of Sens. Carl Levin and Debbie Stabenow that they would block Bush’s candidates for Michigan’s courts due to his refusal to re-submit Clinton-era nominations.) Democrats opposed Miguel Estrada because of his Scalia-esque judicial philosophy, Peter Keslier because he was a Federalist Society co-founder and a Bork acolyte, William Myers because of his anti-environmental views, and so on.

But, with just two exceptions, Republican opposition to Obama’s nominees seems to have little to do with their qualifications or ideological temperament. On the contrary, it’s liberals who are grumbling about the president’s moderate picks. The left never generated much enthusiasm for Joseph Greenaway, Alito’s solidly centrist replacement on the Third Circuit. Or Albert Diaz, who spent a decade representing Big Tobacco. Or even David Hamilton, who was recommended by Indiana’s Republican senator and endorsed by the local Federalist Society chapter. Even those credentials didn’t stop the Republicans from filibustering his nomination for five months.

Few cases illustrate the indiscriminate nature of Republican obstructionism better than Obama’s nominee for the Fourth Circuit, Barbara Keenan. After clearing the Judiciary Committee without dissent, her nomination languished for half a year under the threat of a filibuster. When Senate Majority Leader Harry Reid finally filed for cloture and brought Keenan’s nomination to the floor, she was confirmed 99-0. In other words, the very Republicans who maneuvered to block her up-down vote ended up voting for her. This is a story that repeats itself with disturbing regularity. In fact, despite Republican stonewalling that has extended the average confirmation time to an unprecedented five months, all but five of Obama’s 42 successful nominees have been confirmed unanimously.

You can keep track of vacancies in the federal judiciary here.