Broken Senate, Broken Courts

Washington is mired in gridlock. But hyper-partisan politics does more than just slow down government. It also cripples the federal judiciary, one of the bedrocks of our democracy.

December 13, 2011

Washington is mired in partisan gridlock, with the White House and Congress divided even on issues with broad public support. But hyper-partisan politics does more than just stop the legislative and executive branches from getting anything done. It also cripples the federal judiciary, one of the bedrocks of our democracy.

The latest egregious example came last week, when Republican senators filibustered the nomination of the eminently qualified Caitlin Halligan to the D.C. Circuit Court of Appeals. In blocking the nomination from going to the full Senate — where Halligan would have been confirmed by majority vote — Republicans ensured that a long-vacant seat would remain unfilled — and that the nation’s second most important court remained understaffed.

This is a problem across the federal bench: there are 80 vacancies on federal courts, including 29 in districts that have been deemed judicial emergencies. And while there are highly-qualified, experienced Americans waiting to fill those seats, shameful partisan tactics in the Senate have prevented confirmation votes on the nominees.

The slow pace of nominations in the Obama administration’s initial months in office certainly left much to be desired, and didn’t help the judicial crisis: by November of his first year in office, Obama had nominated only 26 judges — compared to the 64 nominations President Bush made in the same time frame.

But the administration has picked up the pace, and the lion’s share of blame for the current judicial logjam falls on the Senate. The president alone can’t staff the federal judiciary. Under the Constitution, no nominee can take a permanent seat on the bench without Senate confirmation. And this Senate has failed to act on countless highly-qualified individuals nominated by the president.

Because of those open seats, sitting judges are swamped by extra cases that should be handled by the judges slated to fill the vacancies. That means frustrating delays for the parties that depend on federal courts to resolve their cases.

Federal judges in Arizona are juggling a criminal caseload that has more than doubled in the past two years, while political gamesmanship in Washington kept Arizona’s bench short-staffed. Because of dilatory Senate tactics, veterans who risked the ultimate sacrifice defending our freedoms have had to wait several years to receive a final ruling on their eligibility for benefits from an overtaxed U.S. Court of Appeals for Veterans Claims. These examples, and countless others across the nation, have occurred because under Senate rules, a single senator can indefinitely hold a nomination from pro­ceeding to an up-or-down vote.

A 2010 report from the Brennan Center for Justice illustrated how, over the last decade, Senate procedures have increasingly been used to prevent crucial decision-making — not to promote deliberation and debate, as the rules are designed to do. Nominees for crucial posts throughout the executive branch have been stalled by the Republicans’ cavalier use of the filibuster, but among the most damaging results of these tactics has been their impact on the federal bench.

During Obama’s first two years in office, only 62 of his 105 nominations were confirmed — the smallest percentage of judicial confirmations over the first two years of any presidency in American history. It’s not that the Senate has rejected his nominees as unqualified or inexperienced; the majority of individuals nominated by President Obama have ultimately been confirmed with little or no opposition during the floor vote.

Take, for example, Judges John Gibney, James Bredar, Catherine Eagles, and Kimberly Mueller. The Senate Judiciary Committee voted unanimously to approve their appointments to district courts in Virginia, Maryland, North Carolina, and California, respectively. But before they could take up the important work of hearing cases, these uncontroversial nominees spent more than eight months in confirmation purgatory, captive to obstructionist Senators using arcane procedural tactics to deny them up-or-down votes. All four were finally confirmed — by the unanimous consent of the full Senate.

Democrats aren’t blameless, of course. Under the last Republican president, they, too, used the threat of a filibuster as a strategic tool of obstruction. But a 2005 deal struck by a bipartisan group of senators — the so-called Gang of 14 — defused the last confirmation crisis. The agreement, which allowed a vote on any nominee except in the most “extraordinary circumstances,” recognized that holding qualified judicial candidates hostage doesn’t serve either party — or the country.  

Unfortunately, in this hyper-partisan political moment, bipartisan common ground looks like a relic from the distant past. Led by Mitch McConnell, GOP senators walked away from the Gang of 14’s common-sense compromise. The resulting non-vote on Caitlin Halligan underscores just how dysfunctional our institutions of government have become.

The filibuster’s damage isn’t limited to grinding the legislative business of Congress to a halt. In Halligan’s case, the Senate’s archaic rules let an obstructionist party deny the nation the service of a highly qualified jurist. Partisan politics is imposing a tremendous burden on the ability of the federal courts to handle soaring caseloads.

In considering action on the 21 still-pending judicial nominees, patriotic Senators would do well to realize how the Senate’s inaction is compromising the judiciary’s constitutionally necessary ability to protect our liberties. Senate obstructionism is slowing the work of the courts to a crawl. Senators who delay justice, deny justice.