During the 2008 presidential campaign, I wrote repeatedly that the future of
the federal judiciary was one key reason to choose between the candidates. As
the Obama administration approaches the halfway mark, his political victory has
been frustrated in respect to his impact on the judicial branch.
A recent report by the Alliance for Justice on “The State of the Judiciary” concluded that judicial appointments have been “fraught with dramatic and unprecedented delays” as a result of “a deliberate pattern of obstruction,” to a level unprecedented since 1970. There are about as many vacancies now as when President Obama took office. Even nominations that were approved by the Judiciary Committee have been held up for votes on the floor.
The statistics of approved nominees by recent administrations make the point: Obama, 45 percent; George W. Bush, 59 percent; Bill Clinton, 67 percent; George H. W. Bush, 83 percent — and this is despite President Obama’s significant Democratic majority in the Senate. As a result, the Republican appointees on the federal courts still compose about 60 percent of the active judiciary.
President Obama has appointed two Supreme Court justices already; but on the trial and appellate courts, his appointees have been kept from serving. Only 10 appellate judges and 30 trial court judges have matriculated through the selection process, to date. Through “secret holds” and objections to consent requests, Republicans have clogged the appointment process. According to the Alliance for Justice report, this blockage has caused operational emergencies in the federal courts in 22 states where filings are piling up.
This undemocratic phenomenon permits a minority of senators to frustrate two branches of government — the executive, who under the Constitution appoints judges, and the judiciary on which they serve (for life). The Obama administration (and the Senate leadership, now distracted as it fights for its elective life) needs to publicly challenge this condition, and the media should be highlighting it.