Over the decades political partisanship has gridlocked the confirmation process at levels. The real losers are litigants in courts with vacant judgeshipsby Russell Wheeler / August 20, 2018 / Leave a comment
The nine-member United States Supreme Court—in the news over the battle to make Judge Brett Kavanaugh its 114thjustice—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,…