The debt limit negotiations aren’t the only case of dysfunction breaking out in Washington. There’s another, unseen crisis underway: Republican obstruction on judicial nominations has stepped up to record levels again.
It’s time for Democrats to respond — by fully exploiting their own options under current Senate rules, and by threatening to change those rules if necessary.
I’d been fairly optimistic about the compromise that Senators struck at the beginning of the 112th Congress in January, in which Republicans agreed to ease up on obstruction in exchange for Democratic agreement to leave formal rules surrounding filibusters and cloture alone. It appears, however, that the deal has now broken down.
Here’s a quick recap of the number of judges confirmed each month this year:
Of course, we’re only halfway through July, and the Senate wasn’t in for much of that time — but the trend is very much in the wrong direction. After a solid start, it’s been a bit less than one confirmation a week over the last four months. That’s not enough to clear up the backlog; it’s not really even enough to keep up with new openings. Which is why, after edging down during the winter, we’re stuck at 90 vacancies, including 17 at the Appeals Court level.
The good news this year is that Barack Obama has finally started nominating judges at a better pace; of those 90 openings, all but 37 have nominees (which isn’t great, but it’s better than was the case for most of Obama’s presidency).
The bad news is that those nominees are stuck.
Remember, for nominees who would receive at least 60 votes — which, I believe, includes almost all of the district court picks, at least — the only constraints on confirmation are Harry Reid’s willingness to override GOP obstruction, and the floor time to make it happen. The Senate floor does not seem inordinately tied up with, uh, legislation this year. So it’s just about whether the Democrats are willing to force the issue or not. And even for those nominees who would receive a majority but fall short of 60, there’s always the possibility of going nuclear and eliminating, or at least reforming, cloture rules. Democrats agreed not to do those things back in January, but there’s no reason for them to keep their side of the deal if Republicans don’t keep theirs.
A full bench is important. It’s important for ordinary citizens, because empty courtrooms mean delayed justice. And it’s important politically; it’s well within the rights of Democrats to insist on the legitimate spoils of winning the White House and (still, don’t forget) a majority in the Senate. This doesn’t get any easier when the election gets closer; it’s time for action on judges right now.