There Is a Judicial Confirmation Crisis, and the GOP Is Causing It

The abuse of chamber laws by Senate Republicans is causing a vacancy crisis in courts nationwide.


Marge Baker is the Executive Vice President for Policy and Program at People For the American Way.

In Tuesday night's State of the Union Address, President Obama called on the Senate to "put an end" to the unprecedented obstruction of his judicial and executive branch nominees, insisting that "neither party has been blameless in these tactics." He was right to call out the problem, but he was wrong that it's a bipartisan issue. It's fine for the president to be magnanimous, but the fact is only one party has systematically held hostage even the most basic tasks of governing in the hopes of making minor political gains. And that party is not the president's.

[See pictures of Obama Delivering State of the Union Address.]

The nominations crisis that we face today exists largely because it can easily fly under the radar—and the GOP politicians behind it know that. This Republican Congress's intransigence has caused harm beyond the very public battles over the debt ceiling and tax cuts for millionaires. Under the unglamorous cover of judicial and executive branch confirmations, the Senate GOP has launched a campaign of strategic obstruction to prevent parts of the federal government from functioning at all.

This became clear in the relatively public battle to confirm Richard Cordray to head the Consumer Financial Protection Bureau. Senate Republicans admitted they had no problem with Cordray himself. Instead, all but two stated in a letter to the president that they would refuse to confirm him unless the new, congressionally created agency he was nominated to head was first substantially weakened. It was an unprincipled attempt to legislate via the Senate's power of advice and consent, which the president rightly sidestepped by installing Cordray with a recess appointment.

[Read the U.S. News debate: Is the Cordray Appointment Constitutional?]

But the Cordray nomination was just the tip of the iceberg. With far less public attention, the GOP has been decimating the nation's courts, causing the judicial branch to face a historic vacancy crisis and Americans seeking their day in court to face unconscionable delays. This crisis is largely due to the chronic inaction of the Senate, which has been crippled by the Republican minority's abuse of the chamber's rules to block even consensus nominees from getting a yes-or-no vote.

More than 10 percent of all district and circuit court seats in the country are now or will soon be vacant, in what is the longest period of historically high vacancy rates in 35 years. Thirty-two of these open seats have been labeled "judicial emergencies" by the Administrative Office of the U.S. Courts. The term isn't bureaucratic hyperbole. As the number of criminal cases surges—a 70 percent increase in the past decade—civil cases are necessarily put on the back burner, resulting in often years-long delays for Americans seeking justice in consumer fraud, copyright infringement, discrimination, civil rights, and other civil claims. Judges in their 80s and 90s have continued working to keep the system running. One told the Washington Post last year, "I had a heart attack six years ago, and my cardiologist told me recently, 'You need to reduce your stress.' I told him only the U.S. Senate can reduce my stress.''

[See a slide show of the members of the Supreme Court.]

Outside of the Senate, there's near-unanimous agreement that the current pattern of obstruction needs to end. Legal groups and prominent judges across the political spectrum—including Chief Justice John Roberts—have urged that partisan politics be set aside for the good of the justice system. But instead, Senate Republicans have dug in their heels. Once being confirmed by the Judiciary Committee—usually without opposition—President Obama's circuit court nominees have waited a staggering average of 136 days for a vote from the full Senate, compared to just 30 days for President Bush's nominees at the same point in his presidency. For district court nominees, historically confirmed quickly and easily except under the most extraordinary of circumstances, the average wait after committee approval has been 90 days under Obama, in contrast to 22 days under Bush. Even among the nominees who were fortunate enough to be confirmed last year, more than a quarter were holdovers from 2010, denied votes from the full Senate until the year after they were approved by the Judiciary Committee.