Radical Republicans, Not the President, Have Created the Judicial Vacancy Crisis

April 4, 2013

by Jeremy Leaming

The inability of President Obama to fill vacant seats on one of the nation’s most powerful courts, the U.S. Court of Appeals for the D.C. Circuit, has belatedly caught the attention of a few beltway reporters. And unsurprisingly several of those longtime reporters have framed the story in a typical, albeit lazy, fashion – it’s both the Republicans and the administration’s fault. It’s a story they are trained to write. Place blame on both parties, question whether there’s really anything new here and then walk away.

So one must look to writers like Andrew Sullivan, Thomas Mann and Norman Ornstein or the Constitutional Accountability Center’s Judith Schaeffer for an accurate picture of the debacle that is the judicial nominations process.

The current fight over the judiciary has very little to do with the pace by which the administration has nominated potential judges. It has everything to do with a Republican Party that has grown increasingly radical. It’s a Party that is oblivious to the last two presidential elections, won fairly handily by a Democrat, and beholden to interests that need a federal bench that tilts heavily rightward – to protect corporate interests. So Republican senators, led by Minority Leader Mitch McConnell (R-Ky), have not taken their constitutional duty to provide advice and consent seriously and abused the filibuster to greatly slow the pace of judicial confirmations. This has led to vacancies across the country hovering above 80 for far too long.

As Sullivan wrote in March, President Obama is “not equally at fault here. This should be a steady, reasonable process – especially for utterly uncontroversial nominees. The American system requires some give-and-take, some acknowledgment that when you lose an election, you cooperate with the winner and take some responsibility for important institutions, like the federal courts. And yet this core conservative instinct to preserve the constitutional order and process has disappeared in the fanaticism of the current GOP. They are behaving like moody teenagers with grudges.”

The Republican obstructionists’ actions have likely had the most adverse effect on the D.C. Circuit, where they recently filibustered one of Obama’s selections for the D.C. Circuit, which hears some of the most important constitutional matters of any of the federal appeals circuits. It hears, for instance, challenges to new regulations aimed at enforcing the Clean Air and Clean Water federal laws. It is also a Court that tilts rightward and has shown great hostility to regulations aimed at protecting our environment – good for corporate interests, harmful to the health of many Americans. 

Caitlin Halligan, the general counsel for the Manhattan district attorney’s office, blocked by Republicans on more than one occasion, withdrew her nomination not long after the second filibuster in early March. Grasping at anything to keep the vacancies on the D.C. Circuit, the Republican obstructionists groused that they didn’t care for how Halligan handled her job in New York, focusing on a case the state lodged against gun manufacturers. Halligan had the ABA’s highest rating and staunch support in the legal community. Schaeffer calls the filibuster of Halligan “another breathtaking example of rank partisanship by Senate Republicans, who have engaged in the unprecedented obstruction of President Obama’s judicial nominees since he took office, creating a vacancy crisis on the federal courts.”

Now the obstructions are honing in on another of the president’s nominees to the D.C. Circuit, the Principal Deputy Solicitor General Sri Srinivasan. Indeed the obstructionists have already engaged in slow-walking the nomination. When Srinivasan gets a hearing before the Senate Judiciary Committee next week on April 10, it will have been more than 300 days since Obama nominated him. The Committee’s Ranking Member Sen. Chuck Grassley (R-Iowa) has been largely responsible for delaying consideration of Srinivasan’s nomination. Like Halligan the obstructionists are putting forth wobbly reasons for the delays. (Often the obstructions give no reason at all for delaying consideration of judicial nominations.)

Srinivasan, like Halligan, has the ABA’s highest ranking for serving on the federal bench. He also has the staunch support of former Solicitor Generals, such as Paul Clement, Ted Olson and Kenneth Starr. In a letter to the Senate Judiciary Committee’s leaders they laud Srinivasan, saying he “has a first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character.” Srinivasan, born in Chandigarh, India and immigrated to the U.S. where he grew up in Lawrence, Kansas, would if confirmed be the first South Asian American to serve on the federal appellate bench.

But Republican obstructionists in the Senate have shown they care little for reality. The quality of Srinivasan’s career and his character could be easily overlooked by this bunch. Regardless of what some mainstream media reporters put forth, the Senate is a changed place primarily because the Republican Party has moved farther rightward and is concerned largely with protecting corporate interests. More people need to call the obstructionists out for this. And the only way to rein them in might be to finally consider serious reform of the filibuster

[image via Gage Skidmore]