Senate Republicans Changed The Playbook On Judicial Nominees

Senate Majority Leader Mitch McConnell (R-KY) speaks about the election of Donald Trump in the U.S. presidential election in
Senate Majority Leader Mitch McConnell (R-KY) speaks about the election of Donald Trump in the U.S. presidential election in Washington, U.S., November 9, 2016. REUTERS/Joshua Roberts

As we approach the end of the year, Republicans are looking forward to filling the many judicial vacancies -- especially the Garland vacancy on the Supreme Court -- left at the end of Barack Obama's presidency. We should never forget why there are so many vacancies, because that affects how the Senate should act with regard to President Trump's nominees. Unfortunately, over the course of Obama's presidency, Senate Republicans changed the playbook. They refused to consider a Supreme Court nominee, and they extended their partisan fights over nominees to include district court nominees, who had generally not found themselves victims to such partisan mistreatment before.

On the Supreme Court, never before has the Senate refused to take any action whatsoever to consider a president's nominee to fill an existing Supreme Court vacancy. There is no precedent for Americans to be forced to wait a year or more for the next president to fill a sudden, unexpected vacancy on the nation's highest court, simply because it was an election year when the justice passed away. In fact, it is extremely rare for a Supreme Court justice to die in office at all, let alone in an election year. Before Justice Scalia, the last election-year death on the Court was in January of 1916, when Justice Joseph Lamar died. President Wilson nominated Louis Brandeis to fill the vacancy, and the Senate confirmed him that June, just five months after the vacancy opened. Of course, nowhere in the Constitution does it say that any of the president's constitutional powers or obligations dissipate a year before the end of his term. President Obama did his job by nominating Merrick Garland to the Supreme Court.

But Republicans failed to do theirs. And because they ignored their constitutionally-defined duties and robbed President Obama and the American people of a Supreme Court nominee, President-elect Donald Trump's nominee to the Garland seat, as well as his other Supreme Court nominees, will be held to a very high standard. Just as President Obama nominated a consensus nominee, no one short of a consensus nominee will be acceptable from Trump. As in so many areas in the Trump era, violations of democratic norms cannot be rewarded if we want to maintain our democracy.

On the lower courts as well, Republicans have been negligent in failing to fill court vacancies. As we've shown, while Democrats in 2007-2008 fulfilled their responsibility to confirm circuit and district court judges, Republicans in 2015-2016 not only confirmed judges at a sluggish pace, they let judicial emergencies (an official designation in which judges are so swamped that justice is delayed) rapidly rise.

As a distraction, GOP leaders often trumpet that the number of confirmations under Bush and Obama are about the same. But they leave out vital information needed for that statistic to have any meaning because they do not mention how many vacancies needed to be filled. Obama had nearly twice as many judges confirmed as Eisenhower, but that doesn't mean Eisenhower's nominees were horribly obstructed; the comparison is meaningless without knowing that Ike had hundreds fewer vacancies to fill than Obama. While Obama hasn't had hundreds more to fill, he has had many more than Bush. Equal numerators mean nothing without knowing the denominators.

Senate Republicans and their cheerleaders also like to point out the number of vacancies without nominees. That is quite a "don't look at the man behind the curtain" distraction. Many of those vacancies are unfilled because the White House has been bending over backward to find moderate, qualified nominees without an ideological agenda who home-state Republican senators will agree to (since they have unilateral power under Senate practice to block lower court nominees from their states).

And what is it that they don't want you to see? It's the extraordinarily high number of circuit and district court nominees (23) who have been fully vetted by the Judiciary Committee but are languishing on the Senate floor because Mitch McConnell refused to allow a vote on them unless nominees favored by GOP senators were allowed to skip in line and move ahead of other nominees, without any guarantee that those skipped nominees would get a vote. Almost all 23 of these men and women were unopposed in committee, and all had the support of their home state senators. But the overwhelming majority were left waiting on the floor for more than half a year, and four could have been confirmed more than a year ago. That's hardly treating nominees fairly.

Indeed, the fact that McConnell refused to let these vacancies be filled by qualified nominees with bipartisan support and no ideological agenda makes one wonder why McConnell was so insistent on keeping these vacancies open. It makes suspect anyone who Trump nominates to fill those vacancies.

Once Barack Obama took office, Republicans changed the playbook. We will fight harder than ever to protect constitutional freedoms and hold Trump accountable if he seeks to appoint justices or lower court judges who'll put ideology over the Constitution. And with 54 percent of voters actually voting against Trump, and the fact that he was helped into office by one of our nation's most dangerous foreign enemies, Trump is nowhere near to having a mandate to push through far-right court nominees. We have the responsibility to ensure that judges and justices will uphold the law and protect the rights of all Americans.