The Wrong Path On Judicial Nominees

The United States Supreme Court in Washington D C USA
The United States Supreme Court in Washington D C USA

Merrick Garland, chief judge of the U.S. Court of Appeals in Washington, is well-qualified and deeply respected on both sides of the aisle for his work as a federal prosecutor and 19 years of service on the federal bench. He has earned the highest possible rating from the American Bar Association.

Unfortunately, Judge Garland now has another distinction: due to unprecedented inaction by Senate Republicans, he has waited longer for a vote than any other Supreme Court nominee.

The Senate is setting a dangerous precedent for the treatment of Supreme Court nominees. Its action reflects an increasingly partisan process for confirming judicial appointments that threatens our justice system and its ability to respond to citizens' needs.

It's important to look back to the last time a nominee waited so long for a vote -- 1916. Louis Brandeis, a Kentucky native and the first Jewish nominee to the Supreme Court, was confirmed after 125 days.

Like this year, the death of a justice created a vacancy in a presidential election year.

President Woodrow Wilson nominated Brandeis, a public-interest lawyer who graduated first in his class at Harvard Law School. He had a distinguished record as the "people's lawyer," advocating for the public interest against major corporations and financial institutions.

There was organized opposition to the appointment, fueled in part by anti-semitism. The campaign against Brandeis marked one of the first times interest groups tried to derail a Supreme Court appointment.

Within days of the nomination, the Senate Judiciary Committee formed a special investigative subcommittee. It held weeks of hearings and issued reports for and against the nomination. After four months, Brandeis was confirmed by a vote of 47-22.

The opposition to Brandeis set a new precedent for Supreme Court nominees: confirmation hearings.

Since then, a Supreme Court nominee has never been denied a hearing. Hearings have become an important part of the process that allows Senators to question the nominee and the American people to hear directly from those who would serve on our highest court.

One hundred years after the ugly chapter that led to confirmation hearings, Senate Republicans are setting a new precedent: a Supreme Court nominee will not get a hearing or vote in the final year of a president's term.

This precedent is being set even though 14 nominees have been confirmed in presidential election years.

The most recent was under President Ronald Reagan, with the 1988 confirmation of Justice Anthony Kennedy by a Democratic Senate.

Under this precedent, any president, Democrat or Republican, will be weakened during his or her final year in office and may be blocked from filling a Supreme Court vacancy.

The Supreme Court may not be able to act in major cases or resolve emergency disputes.

In the five months since Justice Scalia's death, the court has deadlocked several times, with real-life consequences for millions of Americans.

Republicans are setting another dangerous precedent: lower-court confirmations have slowed to a trickle in the final two years of a presidency.

While this obstruction receives far less attention than the Supreme Court vacancy, it has a far-reaching effect on the ability of our lower courts to deliver justice.

Confirming well-qualified nominees to these positions is one of the Senate's most important responsibilities, as district and circuit courts handle the vast majority of federal cases. But this job is not getting done.

During the last two years of the George W. Bush administration, a Democratic Senate reduced the number of vacancies. Sixty-eight district and circuit court nominees were confirmed. The number of vacancies was reduced to 34 by October 2008 -- the month before the election.

During the last two years of the Clinton administration, Republicans controlled the Senate. While more than 60 nominees were held up, 72 district and circuit court nominees were confirmed.

But in the last two years of the Obama administration, just 20 district and circuit court nominees have been confirmed. The last time so few nominees were confirmed was 1952 -- when the federal judiciary was one-third of its current size.

Vacancies are skyrocketing due to the Senate's inaction. Eighty-six judgeships are vacant, about 10 percent of the federal judiciary. There will be eight more vacancies by the end of the year -- nearly three times as many as there were in October 2008.

According to the Judicial Conference of the United States, 29 of these vacancies are judicial emergencies. This means that the vacancy is on a trial court with more than 600 new cases per judicial position, or on an appeals court with at least 700 cases per three-judge appellate panel.

These vacancies affect citizens and businesses that need timely resolutions to their disputes. According to the Judicial Conference, one Pennsylvania district with a large number of vacancies resolved approximately 300 fewer cases than the prior year.

In a Florida district, about 750 fewer cases were resolved compared to the prior year.

Both districts have judicial nominees pending in the Senate.

Judge Mark Young, a distinguished nominee for the federal court in Los Angeles, is also waiting for a floor vote.

He has a strong record as a federal prosecutor and L.A. County Superior Court Judge, and the Judiciary Committee unanimously approved him last November.

By the time the Senate returns in September, Judge Young will have been waiting for a floor vote for 10 months. His nomination will remain pending, along with 20 other nominees.

These well-qualified nominees are being denied a vote for the same reason Judge Garland is being denied a vote -- election year politics.

This is dangerous territory for our judicial system and the American public will suffer as a result. Senate Republicans should stop their obstruction -- for the good of our country.