The Strategy Behind Judicial Obstruction

Three federal judges will receive confirmation votes today, marking the end of a March deal struck by Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) to hold confirmation votes on 14 judicial nominees. All 14 of the judges in the deal were named by President Obama in 2011; all 14 could have—and should have—been confirmed last year. If all three receive majority votes, they will bring the total number of the president’s confirmed circuit and district court judges to 143. This figure is considerably lower than those of his two predecessors on the same date in office, with 172 of President Bush’s and 181 of President Clinton’s nominees having been confirmed by May 7 of year four.

Looking more broadly at the total composition of the federal bench, today sees a federal judiciary with 430 judges appointed by Republican presidents and 367 judges appointed by Democratic presidents, or a 54%-46% Republican-appointed majority. 

What’s at stake for Senate Republicans in obstructing President Obama’s nominees becomes evident when considering the number of vacancies that will still be unfilled after today’s votes. If all three of today’s nominees are confirmed, there will still be 93 current and future federal judicial vacancies. If candidates to fill all 93 empty seats were to be nominated and confirmed this year, the balance among judges on the bench in December would be nearly equal, with 49% appointed by Republican presidents and 51% by Democratic presidents. 

By using any means available to delay, drag out, and obstruct every step in every stage of the nominations process, Senate Republicans are preventing the restoration of balance to the federal bench. Even worse, they are also laying the groundwork for what could be a drastic increase in the current imbalance. 

Each nominee prevented from moving through the process and receiving a vote in the Senate adds to the potential that a vacancy will carry over to next year. And if, for example, every one of those 93 remaining vacancies were to be filled with Republican appointees, the federal bench would be comprised of 523 Republican appointees and 367 Democratic appointees… a 58%-42% split. Some partisans in the Senate might see that possible outcome as a powerful incentive to continue their unprecedented and unrelenting obstructionist tactics.

While the partisan games continue in the Senate, 250 million Americans live in a community affected by a judicial vacancy.

For an in-depth look at the state of judicial nominations as of May 7, see Alliance for Justice’s newly released report The State of theJudiciary: Judicial Selection During the Remainder of President Obama’s FirstTerm. For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.

Update: All three of Monday's nominees were confirmed; one by an overwhelmingly bipartisan margin, and the other two on unopposed voice votes.