Remember Merrick Garland, the veteran federal judge President Obama nominated in mid-March to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia? That was 85 days ago, and Judge Garland still hasn’t gotten a hearing, much less a confirmation vote, even though he is unquestionably qualified and widely respected by Republicans and Democrats alike.
The Senate Republicans, led by Majority Leader Mitch McConnell, refuse to act because they want to deny Mr. Obama another seat on the court, regardless of the nominee’s qualifications. Meanwhile, the Supreme Court sits hamstrung, unable to deliver conclusive rulings on some of the most pressinglegal issues facing the country.
The Republicans’ blockade of Judge Garland is shameful, but it is only the most glaring example of what has been a historic slowdown in filling federal court vacancies across the country. This has been enormously damaging to the district courts, which deal with hundreds of thousands of cases annually, and where backlogs drag out lawsuits and delay justice. It also harms the appeals courts, whose rulings are the final word in nearly all litigation, since the Supreme Court hears only about 75 cases a year.
How bad has it gotten? Compare the current Senate’s abysmal record with the Democratic-led Senate that President George W. Bush faced in the last two years of his administration. By June 2008, the Senate had approved 46 of Mr. Bush’s judicial nominees; they confirmed a total of 68 by September. In contrast, Mr. McConnell’s Senate has confirmed only 20 of Mr. Obama’s judges since Republicans took control in January 2015, the slowest pace since the early 1950s. Appellate judges accounted for just two of those confirmations, fewer than at any time since the 19th century.
As a result of the impasse, there are now 83 vacant federal judgeships nationwide — 30 of which have such overwhelming case backlogs that the court system has classified them as judicial emergencies. By comparison, there were only about half as many when the Democrats controlled the Senate in 2008.
It would be easy to fill most of these vacancies if the Senate did its job. Currently, 37 of Mr. Obama’s nominees remain bottled up in the Senate Judiciary Committee, 30 of whom are still waiting for their hearing; 17 more have been approved by the committee but have not been scheduled for a full Senate vote. To make matters worse, Senator Charles Grassley of Iowa, chairman of the Judiciary Committee, has said he will shut down the confirmation process, such as it is, before the presidential nominating conventions in July.
This disgraceful and destructive behavior extends well beyond the judiciary. The current Senate has approved the fewest civilian nominees by a president in 30 years, according to an analysis by the Congressional Research Service. One nominee for an ambassadorship died recently after waiting more than two years for a confirmation vote that never came.
It is true that both parties manipulate the confirmation process when they are in power, but current Republican leaders have taken it to an extreme. They should not be surprised if, come November, the voters choose representatives who actually do their job.