Editorial: Senate Republicans’ inaction puts judiciary in crisis

By Daniel Horwitz, via The Tennessean (original link:  http://www.tennessean.com/story/opinion/contributors/2016/08/05/senate-republicans-inaction-puts-judiciary-crisis/88296362/)

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The American judiciary is in crisis. This crisis, however, is not one of competence or capability. Instead, due to unprecedented inaction from the United States Senate, large swaths of the federal judiciary are simply missing — resulting in excessive delays, exploding dockets and inconsistent application of the law in different parts of the country.

At present, more than 10 percent of the federal judiciary is vacant, with the overwhelming majority of such vacancies occurring in federal District Courts. District Courts serve as the judiciary’s workhorses, handling claims like Social Security disability denials and overseeing criminal prosecutions. Astoundingly, however, nearly one-third of federal District Court vacancies are currently designated “judicial emergencies” — a term that is generally defined as a court where filings exceed 600 per judge. Consequently, for anyone who believes that justice delayed is justice denied, the status quo stopped being acceptable many years ago.

The situation is no better at the appellate level. With respect to Court of Appeals nominees, the confirmation process has become so dysfunctional that Senate Republicans are now routinely refusing to confirm qualified nominees whom they themselves proposedto fill vacant positions. The Senate’s failure to fill vacant seats has also put a tremendous strain on sitting judges who must compensate for their missing colleagues — often preventing them from devoting the necessary time and attention to each case that every litigant deserves. Given the judges’ impossibly large caseloads, oral argument is now permitted in fewer than one out of every five cases in many federal circuits — depriving many aggrieved citizens of their cherished day in court.

But nowhere is America’s judicial crisis more apparent than in the U.S. Supreme Court. Having been left without a critical ninth member since February, the Supreme Court has already been unable to resolve myriad split decisions by lower courts — resulting in the same laws carrying different meanings in different parts of the country. Significantly, if the Senate fails to confirm a new justice soon, then the Supreme Court will also be forced to go at least two terms without being able to settle such crucial disputes. The resulting chaos is not only deeply damaging to the rule of law and to the judiciary as an institution — it is also historically unprecedented.

Denying President Barack Obama’s Supreme Court nominee Merrick Garland a Senate confirmation hearing is unparalleled in modern history. Since 1916, with the sole exception of 11 justices who were confirmed by unanimous consent, the Senate has scheduled a confirmation hearing for every single person who has been nominated to fill a Supreme Court vacancy, bar none.

Until now, the Senate also has never failed to do its constitutional duty, either as a matter of partisan obstruction or because a vacancy came up during an election year. In fact, Senate Democrats have confirmed Republican presidents’ Supreme Court nominees 12 separate times in recent history — including permitting conservative lightning rod Clarence Thomas to replace liberal icon Thurgood Marshall in 1991. Additionally, since 1912, six Supreme Court justices have been confirmed during presidential election years, including the 1988 confirmation of Justice Anthony Kennedy under President Reagan.

Moreover, as George H.W. Bush and Jimmy Carter have never forgotten, presidential terms are four years — not eight. Thus, the notion that presidents should simply stop fulfilling their constitutional duties during the final year of their terms — thus wasting a full quarter of an American presidency — is ludicrous.

Ultimately, if Senate Republicans decide that judicial nominees like Merrick Garland are unqualified to hold office for any reason, political or otherwise, then they are within their rights to vote them down. To fail even to hold confirmation hearings for proposed nominees, however, is a flagrant dereliction of duty. Thus, Senate Republicans should rightly be taken to task for refusing to comply with their constitutional obligations. Election year or not, it’s long past time for them to do their job.

Daniel Horwitz is an appellate attorney in Nashville and a member of the American Constitution Society.  Reach him at daniel.a.horwitz@gmail.com.

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