Advise And Dissent: The Senate Majority Refuses To Do Its Job

With the U.S. Senate adjourned, the chamber is empty which means that judges’ seats in federal courthouses across the country
With the U.S. Senate adjourned, the chamber is empty which means that judges’ seats in federal courthouses across the country will be empty, too.

The U.S. Senate has essentially closed up shop and gone home. The now-empty desks in the Senate chamber translate into empty federal judicial seats and not just on the U.S. Supreme Court.

Of course the gaping hole in the lineup of justices on the nation’s highest court has been the most widely publicized. Justice Antonin Scalia died on Feb.13. On March 16 President Obama named Judge Merrick Garland, a judicial moderate who has won bipartisan praise for his judicial temperament and record as Chief Judge of the D.C. Circuit Court of Appeals.

Just as the Senate Republican leadership promised immediately upon Scalia’s death, there has been no action on filling the Supreme Court vacancy: no hearing or vote in committee; no floor debate in the full Senate; and no final confirmation vote. In short, it was a total blockade of the constitutionally mandated process to ensure a full complement of nine justices on the highest court.

There’s been less publicity about the other vacancies that have languished in federal district and circuit courts across the country. When the Senate adjourned, there were 98 other unfilled vacancies on courts that hear cases and render decisions that impact every aspect of our lives including where we can go to school, the quality of our air and water, our access to a decent job, whom we can marry, and our ability to choose if and when to become parents. Truth be told, the Supreme Court hears fewer than 100 cases while the lower federal courts are the last word on hundreds of thousands of cases.

Some vacancies have been officially classified as judicial emergencies because they’ve resulted in extreme backlogs in cases. When the 114th Congress began there were 12 such emergencies. That number has grown to 38.

Let’s back up a bit and look at the process. When a federal court vacancy occurs, the two U.S. senators from the state with the vacancy traditionally cooperate on recommending nominees to the sitting president. That’s pretty much how the process has worked during the Obama administration.

The Senate Judiciary Committee has another way to ensure that nominees have home-state senators’ support—it’s called the blue slip. Honored by judiciary committee chairs from both parties, this practice requires each home-state senator to return a blue paper slip, indicating that they are ok with the confirmation process going forward—whether or not they will ultimately vote for or against the nominee.

This is the case with the 25 judicial nominees who have had a hearing and been approved by the Senate Judiciary Committee—some more than half a year ago. These non-controversial, well qualified men and women were blockaded by Senate Majority Leader Mitch McConnell who played politics with the judiciary at the expense of many thousands of people awaiting their day in court. As a point of reference, after the 2008 election there were no nominees named by President George W. Bush left over. Today, after the 2016 election, the Senate left with 25 nominees in limbo.

Now that the Senate has adjourned and gone home without acting on filling these vacancies, it is up to the next president to fill all the judicial vacancies including those held open by unprecedented and brazen partisan scheming.

There are scenarios circulating by which the Senate could act on filling these vacancies before the new president is sworn in—unlikely but intriguing. But It’s not too early to let our senators know that we want them to insist that these 25 nominees be re-nominated by the next president. These vacancies have languished far too long already. Why not fill them expeditiously with qualified, consensus nominees who have already gone through the vetting process?