Republicans have apparently had enough of confirming judges: Roll Call reports that Mitch McConnell has decided that Republicans will block by filibuster all circuit court nominations until after the election. The result? More empty benches, and more judicial emergencies.
Republicans are invoking the so-called Thurmond Rule, named after a sort-of precedent of Strom Thurmond blocking a Supreme Court nomination in 1968, to justify these types of maneuvers earlier and earlier in each presidential election cycle. The basic idea: there’s an election coming up, our side might win, and so it’s okay to keep the government from functioning normally until then.
The big overall story here has been that the main difference between this cycle and previous ones has been expanding the targets of filibusters from those deemed “controversial,” for whatever reasons, to absolutely every nomination. Now, it’s true that many nominations did eventually get confirmed, sometimes because Republicans dropped their objections or, as in the case of 9th Circuit nominee Andrew Hurwitz this week, because enough Senators from the Snowe/Murkowski/Lugar faction split with the majority of their party and voted for cloture.
But overall, Republican filibustering has meant that Barack Obama has put fewer judges on the bench, and had a smaller percentage of his nominees confirmed, than any of his recent predecessors. And that’s despite his party having a majority of the Senate throughout his presidency so far, and with a very large majority in the 111th Congress.
Now, with McConnell’s announcement that all circuit court nominations are done for the cycle, things are going to get worse. This is the first time this has been done so early. In both 2004 and 2008, appeals court confirmations were shut down after June, but not this early. According to information provided by the Alliance for Justice, two circuit court judges were confirmed on June 24, 2008, and three were confirmed on June 24, 2004. An Alliance for Justice fact sheet going farther back reports that circuit court confirmations have continued into October of election years in earlier cycles.
So Republicans have blocked more judges during Obama’s presidency than has ever happened before — and now they want to quit earlier than ever before, too.
Remember: this isn’t just about partisan advantage. This is also about whether the courts can function well enough to provide justice. At the very least, it’s worth remembering that Mitch McConnell doesn’t seem to care about that one.