A slide into obstructionism undermines the US judiciary 


The nine-member United States Supreme Court—in the news over the battle to make Judge Brett Kavanaugh its 114^thjustice—sits atop a federal judiciary that is less than a tenth the collective size of the courts of the 50 states. But litigation under federal criminal, civil rights, economic and environmental legislation means that federal judges punch above their weight.

Putting judges on these courts—in particular the Supreme Court, the less than 200 circuit judgeships of the intermediate appellate courts, and the less than 700 judgeships of the trial-level district courts (all life-tenured)—was once a near-ministerial task. The president, under the Constitution, nominated candidates for the Senate’s “advice and consent,” which usually came quickly, with little partisanship.

Yet there has since been a decades-long devolution into obstructionism. Political polarisation has crippled the process, with consequences that are playing out before our eyes. But when did it happen? And what went wrong?

Selecting Supreme Court justices became more contentious and partisan in the 1960s. From 1916 to 1967, the Senate confirmed 30 of 31 Supreme Court nominees, 19 with voice votes (meaning confirmation was so assured as to not require a tally) and just a smattering of nay votes on most of the 12 roll calls. There were only three 20-plus nay votes, including against the only defeated nominee. The Senate disposed of nominees in a median of 15 days, a number inflated by two lengthy confirmations.

Since 1967, the 100-member Senate has confirmed just 19 of 26 nominees, none by voice votes.Three were defeated, four never got votes, and three successful nominees got over 40 nay votes, as likely will Kavanaugh when he’s confirmed. Since 2005, only Chief Justice John Roberts has received fewer than 23 nay votes. No other nominee who got a Senate vote got less than 31. Median days from nomination to confirmation numbered 65.

Similar changes have occurred for circuit and district judges, who terminate the great bulk of cases. Lyndon Johnson and Richard Nixon (1963-1974) had two of the most tumultuous presidencies of the last half century. Both were driven from office, and each saw the Senate reject two Supreme Court nominees.

But the Senate confirmed roughly 95 per cent of their district and circuit nominees and did so in 25 median days. From Ronald Reagan to Barack Obama, however, confirmation rates have declined, especially for circuit nominees, and those confirmed have waited an increasingly long time.

As of mid-August, the Senate has confirmed Trump’s 26 circuit judges in 122 median days, but his 26 district appointees have taken 216. Eight circuit and a whopping 75 district nominees are in the “pending” category. So far, one circuit and three district nominees who faced strong opposition have withdrawn from consideration, and so the Senate did not have a chance to reject them. (Nominations almost always fail because of inaction or withdrawal from consideration). What explains this gradual slide into contentiousness? To a degree, the Senate is taking its “advice” role more seriously, but more than anything, it is the same loss of bipartisan comity that has rendered the government, especially Congress, nearly incapable of performing even routine tasks. The once-undramatic exercise of funding the government is now a perennial nail-biter to see if the federal agencies can open when a new fiscal year starts.

Similarly, other-party senators once routinely approved presidents’ judicial nominees, based on deference due the election victor, a recognition that courts need judges to preside over litigants’ cases, and an expectation that those across the aisle will accord their party’s future presidents the same deference.

Now, things are dog-eat-dog for both parties, with little concern for what happens when the tables are turned. The Republicans who controlled the Senate in the Obama administration’s final two years stopped confirming judges, unlike final-two-year Senates in previous eight-year presidencies, when opposing parties controlled the White House and Senate. The Senate famously refused even to consider Obama’s March 2016 Supreme Court nominee to fill the vacancy created by the death of Justice Antonin Scalia.

That obstructionism earned praise of right-wing groups but all but assured that confirmations will stop when, as is inevitable at some point, Democrats control the Senate under a Republican president.

The losers in these battles are litigants in courts with vacant judgeships and the courts themselves. Qualified potential nominees for lower-court judgeshipswill increasingly decline to be considered because the prize is not worth the pain exacted by the selection process.