Stop the Obstruction and Do Your Job

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In May, I walked onto the Senate floor and made a motion to confirm all judicial nominees for federal district court seats pending before the full Senate, including two from Pennsylvania. I felt compelled to take action since the pace of judicial confirmations has slowed to a trickle while the number of judicial vacancies has skyrocketed since Republicans took over the majority in 2014.

Despite the fact that the Senate has confirmed just 22 judges so far this Congress, compared to the 68 the Democrat-controlled Senate confirmed in the final two years of the Bush administration, and despite the fact that judicial vacancies have increased more than 100 percent in the last two years, the Majority Leader quickly shot down my motion. He objected on the basis that comparing the historically slow pace of confirmations under his leadership to previous Congresses was like comparing “apples and oranges”. This was not the only time Senate Democrats have taken action to break Republican obstruction and confirm judges. This year, Senate Democrats have gone to the floor to make over 20 confirmation motions for district court nominees, including 5 just this week. Each time, Republicans stood in the way.

It has been 17 weeks since I made that motion. In that time, the already high number of judicial vacancies has risen further, from 83 to 90, and an estimate of almost 118,000 new cases were added to the district courts’ dockets, including more than 5,000 in Pennsylvania’s three districts, based on 2014–2015 caseload averages. Last year, the total number of pending district court cases rose over 12,000, to 438,808, the same year that the number of judicial confirmations dropped to a level not seen in over half a century, with just 11 confirmations for the entire year.

The only way to alleviate the stress on the system is to fill vacancies.

Pennsylvania currently has four pending district court nominees, all distinguished judges nominated with bipartisan support from my colleague Senator Toomey. Two of these nominees, Susan Baxter and Marilyn Horan, passed out of the Judiciary Committee with unanimous support and are now among the 18 district court nominees, all vetted and deemed fit by the Judiciary Committee, awaiting full-Senate confirmation votes. Pennsylvania’s other two excellent district court nominees, John Younge and Robert Colville, have inexplicably been blocked from even getting a committee vote, despite their obvious qualification for the federal bench. There is simply no legitimate reason to block any of these nominees.

Unfortunately, the district court is not the only place Senate Republicans are obstructing nominations. It took more than a year for the Senate to confirm the eminently qualified Judge Luis Felipe Restrepo to his seat on the Third Circuit Court of Appeals. Now, the Senate again has before it an excellent nominee to that court, Rebecca Haywood, who deserves prompt consideration and a vote. She was nominated almost six months ago, yet Republican leadership has not taken a single step toward considering her nomination.

At the Supreme Court level, nominee Merrick Garland, Chief Judge of the D.C. Circuit Court of Appeals and among the most qualified Supreme Court nominees in history, has been the victim of extreme and unprecedented obstruction by Senate Republicans. Not only have they refused to hold hearings and advise and consent on his nomination as the Constitution explicitly requires, but many have refused to even sit down with him, despite his decades of public service as a judge and former Department of Justice prosecutor.

The obstruction is a bald attempt to preserve a Supreme Court appointment for a future President Trump, a dangerous political game unworthy of the highest court in the land.

When Senators refuse to do their job and confirm judicial nominees, it is citizens seeking access to the courthouse who suffer. In the district courts, growing case backlogs make it harder to provide criminal defendants the speedy trial to which they are constitutionally entitled. Backlogs also make it more difficult for plaintiffs in civil suits, many of whom have suffered serious injuries, to seek redress in a timely fashion. At the Supreme Court level, we have already seen the way an eight-member court can deadlock, sending critical cases back to lower courts and failing to create controlling precedents. This could create a situation where citizens in different parts of the country live with different understandings of their rights and the law, a patchwork that would undercut the rule of law in this country.

In refusing to do their constitutional duty to advise and consent on judicial nominees, Senators also undermine the integrity of the judiciary as an independent and co-equal branch of government in our democracy.

When people do not have access to the courthouse they lose faith in the courts.

When Senators try to wield the judicial confirmation process as an instrument of party power, they skew public perception of the judiciary as an independent and nonpartisan body crucial to the proper functioning of our government.

Different judges may have different judicial philosophies and professional histories, both of which are fair game for Senators to probe in an effort to ensure the federal bench is staffed with judges of the highest caliber. But judges confirmed under different presidents are not “apples and oranges”, as the Majority Leader claimed that day in May. We have the same expectations of every federal judge, no matter what administration nominated them: that they adhere to the law, and apply it to each case’s facts fairly and impartially. When President Obama nominates judges, he is not playing partisan games; he fulfilling his constitutional duty to fill judicial vacancies and make sure the courts are appropriately staffed.

I hope every Senator feels an equal sense of duty. Amid all the obstruction, it is important to recall the American principle that federal judges in this country are not political actors; they are public servants appointed to serve an indispensable function in our democracy. The Senate should stop the obstruction and do its job on judicial nominations.

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