WASHINGTON ― The record number of judicial emergences in the United States is not the issue that concerns Senate Majority Leader Mitch McConnell (R-Ky.). What matters to him, he confirmed this week as Congress left town until after the November elections, is the number of judges the Senate gives to President Barack Obama.
Democrats went on to change Senate rules to break what had become a steady pattern of GOP filibusters. That drove the judicial emergency number down to 12. But then Republicans won back the Senate, and in these final two years of Obama’s term, they’ve confirmed just 22 judges ― the slowest pace since 1952. (By comparison, Democrats approved 68 of George W. Bush’s judges in 2007 and 2008, and Republicans approved 73 of Bill Clinton’s nominees in his administration’s last two years.)
As a result, the number of empty judge seats has doubled to 92, and judicial emergencies have tripled to a stunning 35.
To judicial advocates, the reason for the Senate’s inaction is obvious.
“What they’re doing is holding open these seats for a future Republican president to put in individuals who side with the wealthy and the powerful,” said Nan Aron, president of the left-leaning judicial advocacy group Alliance for Justice. “That’s what this is about.”
The problem with not filling empty judge seats is that people’s court cases get backed up, sometimes for years. Sitting judges forced to handle extra cases struggle with burnout. Those hurt the most are everyday people trying to get their day in court. It might be someone who got kicked off of Social Security and is due compensation. It might be someone who lost their home, or someone suing an employer for discrimination. Small businesses rely on the courts to resolve all kinds of disputes as well. When these cases get backed up, justice for them is delayed, too.
But none of this mattered to McConnell on Thursday, when he held a news conference to tout the accomplishments of the Senate.
Asked if there is “anything that the Senate should do to fill some of those, regardless of how many each president has gotten,” the Republican leader made it clear that judicial emergencies were not the important part.
“The president has gotten more judges over his eight-year tenure than President Bush did over his eight-year tenure,” McConnell said, using a well-worn talking point repeated by fellow Republicans.
“There was a rush of confirmations right at the end of 2014 before the majority flipped,” McConnell continued, referring to a batch of judges approved late that year after Democrats changed the rules. “I think President Obama has been treated very fairly by any objective standard over his eight-year period.”
While the answer reveals that McConnell’s focus is on preventing Obama from filling any more empty court seats ― these are lifetime appointments, after all ― it also highlights a problem with his idea of objective standards.
The reason there are so many judicial vacancies and emergencies is not just that Republicans have slowed judicial confirmations to a snail’s pace. It’s also because the aging federal judiciary has seen a huge jump in the number of retirements.
While Bush did get fewer confirmations than Obama ― 325, compared with Obama’s 327, according to Alliance for Justice ― he also had far fewer vacancies to fill. Just 359 seats opened during Bush’s eight years, while Obama has had 418. That means the need for new judges has been greater during Obama’s administration, with 59 additional vacancies to fill. And it means that by objective standards, Obama is being treated far worse than Bush by the Senate. While Bush got about 91 percent of his judges confirmed, Obama is at 78 percent.
Senate Minority Leader Harry Reid (D-Nev.) grumbled that McConnell’s line about Obama already getting enough judges confirmed is deceptive.
“It’s simply not true, okay? Of course he knows it. But if he says it enough, he thinks [Americans] going to believe it,” Reid told The Huffington Post on Wednesday. “We have a significant number of judicial emergencies.”
McConnell could still allow some judges to get confirmed in the lame-duck session after the elections. But it’s already been more than two months since he scheduled a vote on a judicial nominee, and McConnell said the Senate would only be in session for a few more weeks this year. It’s still unclear how many more Obama judicial nominees, if any at all, Republicans will confirm before the president leaves office.