Republicans have apparently grown bored with rendering the legislative branch completely dysfunctional.
Now they’re doing their damnedest to destroy the judicial branch, too.
With little fanfare, the United States’ federal judiciary has started coming apart at the seams, particularly in judicial districts represented by at least one Republican senator. That’s no coincidence. Motivated by a desire both to make President Obama look bad and to delay any judicial appointments until there’s (possibly) a Republican in the White House, GOP senators have thrown obstruction after obstruction in front of the judicial appointment process. As a result, the Republican-controlled Senate has confirmed only six federal judges in 2015.
If that sounds low, it is.
It’s the slowest pace in over six decades, as documented in a new report from the Alliance for Justice. As a result, since the start of the year, the number of open federal judgeships has increased from 43 to 67, with at least 18 more set to open in the next few months.
Also as a result, “judicial emergencies” — basically, courts where caseloads have become unmanageable — have exploded throughout the country. This has had detrimental effects on both criminal defendants awaiting trial and civil litigants forced to wait months or years for their day in court.
To be fair, part of the reason caseloads are piling up has little to do with the Senate. The number of judgeships has not kept pace as the U.S. population has increased. Higher federal incarceration rates have also led to more lawsuits and petitions from prisoners.
But instead of creating new judgeships to address this, Republican senators are trying to avoid filling the positions we already have. And give them credit for creativity: They have managed to clog the judicial pipeline at virtually every choke point they have access to — all while, of course, blaming Obama for the delays.
The first step in the process for selecting a new judge involves home-state senators evaluating candidates, often by setting up local selection committees. But in states such as Texas, Republican senators have dragged their feet in establishing such commissions, so no one ever reaches the point of potential nomination. In Wisconsin, home to the country’s oldest circuit court vacancy (more than 2,000 days and counting), Sen. Ron Johnson has blown up the selection commission and restarted the process twice.
In other states, such as Florida, Pennsylvania and North Carolina, the rigmarole of finding a suitable candidate has been completed and resulted in a nomination from Obama. Both home-state senators have even publicly endorsed the nominees in question. But that’s just led to a new bottleneck: Republican senators have refused to return their “blue slips,” the century-old, behind-the-scenes forms that home-state senators are supposed to sign to indicate approval of a nominee.
For example, Sen. Marco Rubio, a Republican presidential candidate, publicly endorsed the nominee for the Southern District of Florida, but seven months later still hasn’t returned his blue slip. Without it, the nominee, Mary Barzee Flores, won’t get a hearing.
In other cases, the Judiciary Committee chairman, Sen. Charles E. Grassley (Iowa), has received the relevant blue slips but delayed holding confirmation hearings and votes on the nominees. In still others, Majority Leader Mitch McConnell (R-Ky.) has delayed or outright refused to schedule floor votes for nominees.
This happens, I should note, even when the judicial nominees are not the least bit controversial. You remember those six lonely, lucky judges who managed to get confirmed this year? They all passed the Senate unanimously — yet still first had to wait an average of 80 days for a floor vote.
Such holdups are bad for democracy, and worse for business.
One Texas lawyer recently recounted the story of a jailed client who saw her co-defendants — who pleaded guilty — finish their prison terms before her case was even heard. And because criminal defendants have a constitutional right to a speedy trial, their cases get prioritized. That means civil cases get bumped further down the waiting list. This has proven especially problematic for businesses in Texas, a state that usually prides itself on being pro-business, because its senators (John Cornyn and presidential candidate Ted Cruz) have most aggressively slowed the process of finding nominees.
So why would Republicans want to muck up judicial proceedings in their own states? Wouldn’t they worry about getting blamed? Not if they suspect that most Americans won’t understand the super-complicated process used to select new judges and will follow sightlines to Obama when Republicans start pointing fingers.
So far the strategy seems to be working.