Last week, Senate Republicans successfully filibustered the nomination of Goodwin Liu, a professor of law at the University of California, Berkeley, to the 9th Circuit Court of Appeals. Regrettably but understandably, Liu has since withdrawn his nomination. Even though Republicans framed him as a runaway liberal judicial activist, Liu is a distinguished nominee sufficiently within the mainstream to earn the endorsement of such well-know leftist radicals as Ken Starr and John Yoo. On the merits, Liu should have been appointed, but beyond that, this filibuster is a symptom of much deeper problems with the way we nominate and appoint judges.
The power to appoint nominees for all levels of the federal court system lies with the president, but the Senate must approve. And under the Obama administration, that process has ground to a halt. Right now, more than 100 seats, or 11 percent of judgeships, on the federal circuit and district courts are vacant. At the same time, caseloads are rising. This means that the courts are overloaded with work -- 33 of the vacancies have been deemed "judicial emergencies" by the Administrative Office of the United States Courts. The high vacancy rate is serious enough that Chief Justice John Roberts called on President Barack Obama to make more appointments.
But these rates don't mean Obama has only nominated leftists too extreme to be appointed. In fact, he seems to prefer moderately liberal judges. Rather, Obama is not making enough nominations from the start, and Senate Republicans have taken obstructionism to new extremes.
The extent of Republican obstructionism has at times been remarkable. During the first two years of Obama's term, only 58 percent of his nominees were confirmed. Contrast this with the rate of his predecessors: 74 percent for George W. Bush and 89 percent for Bill Clinton. And they both worked with smaller or nonexistent Senate majorities. The Republican minority has allowed more nominations to proceed to a vote since the 2010 midterms, but overall, Congress has confirmed 30 fewer judges than it did at this point in Bush's first term.
Even more important, the behavior of Senate Republicans suggests that they see maintaining a high vacancy rate under a Democratic president as a plus, not a problem to be fixed. The filibuster of Liu, at least, targeted a specific judge whom Republicans viewed (rightly or wrongly) as ideologically objectionable. The power to advise and consent to judicial nominations does not require the Senate to be a rubber stamp. Much more disturbing is the fact that Republicans frequently engage in a campaign of systematic delay and obstruction. While Democrats under Bush used the filibuster more often, they generally permitted most nominees they considered acceptable to move forward: The average time of confirmation for district and circuit court nominees under Bush was 25 days. Under Obama, the time has increased to 120 days. The advise-and-consent function was designed to improve appointments made, not facilitate obstruction for the sake of obstruction.
Some nominee rejections have been so pointless as to be farcical. Jane Stranch, a moderate lawyer from Tennessee whose nomination had the support of the two senators from her home state, both Republicans, was confirmed by a 71-21 margin only after her appointment was delayed for more than a year. Both Barbara Milano Keenan, a Virginia Supreme Court justice nominated for the U.S. Court of Appeals for the Fourth Circuit, and Denny Chin, a district judge from New York nominated for the Second Circuit, were filibustered for months before being confirmed unanimously. As these examples plainly illustrate, even the most unobjectionable nominees face months of obstruction for no particular reason.
This is not to say, however, that the blame for the unacceptable levels of judicial vacancies belongs to the Senate Republicans alone. Obama has been oddly slow to submit judicial nominations to the Senate, offering 30 fewer than Bush had by a similar point in his presidency. It's possible Obama is responding to the sluggish confirmation rate, and his administration feels that adding more nominees to an existing logjam would do little to speed up the process. But his reticence in making nominations exacerbates the vacancy crisis.
Wherever the problem lies, though, it needs fixing. The vast majority of federal cases end in the district and circuit courts. These lower-level courts also play a large role in how Supreme Court precedent is interpreted. Even when the Supreme Court delivers rulings, the increasing tendency toward "minimalist" opinions means that resolving issues happens at the level where all these vacancies are gumming up the works.
As the party-line rulings on the constitutionality of the Affordable Care Act serve to remind us, it matters which judges hear cases, and presidents should have a fair chance to fill judicial vacancies. Obama needs to appoint more judges, and the Senate should act to vote on nominees on a reasonable timetable.