Article II, Section 2 of the United States Constitution authorizes the president to appoint, "with the Advice and Consent of the Senate," all federal judges. It has never been clear precisely what the phrase "advice and consent" means. In practice, though, at least when it comes to the lower federal courts (that is, all federal judges other than Supreme Court Justices), the Senate historically has taken a highly deferential approach. Until recently, and going all the way back to 1790, the Senate has confirmed more than 95% of all lower court nominees.
In the first year-and-a-half of the Obama administration, however, the Senate has confirmed only 42% of the President's nominees. This is unprecedented.
In the first year-and-a-half of a newly-elected president's term, the Senate historically has confirmed almost 100% of all lower federal court nominees - until the 1950s. Then things began gradually to change. Since1980 there has been a steady decline: Reagan (92%), Bush I (72%), Clinton (67%), Bush II (59%), Obama (42%).
This is a matter of considerable concern. The lower federal courts make tens-of-thousands of decisions each year on issues as wide-ranging as freedom from discrimination, due process of law, religious liberty, freedom of speech and press, crime and punishment, the environment, immigration, workplace safety, privacy, intellectual property, bankruptcy, and access to the political process, to name just a few.
There are approximately 850 lower federal court judgeships. At present, a record 117 of these positions remain vacant. This represents a truly astonishing 14% of the federal judiciary. These vacancies add significantly to the backlog of cases and inevitably undermine the quality of justice Americans receive.
Several factors have contributed to this state of affairs. First, the realignment of the political parties over the past half-century has polarized American politics. When the Senate rejected President Nixon's nomination of G. Harrold Carswell to the Supreme Court in 1970, 32% of Republicans voted against confirmation, and 31% of Democrats voted for confirmation.
That could never happen today. In 1970, there were many conservative (mostly southern) Democrats and many liberal (mostly northern) Republicans. These senators often voted across party lines. Today, almost every liberal senator is a Democrat and almost every conservative senator is a Republican. This has led to much deeper and more strident partisan divisions on a broad range of issues, including judicial confirmations.
Second, the process of judging has increasingly (and, for the most part, correctly) come to be understood as involving judicial philosophy, rather than just "calling balls and strikes." As a consequence, the overall judicial philosophy of nominees has increasingly come into question. The result is that senators are now much less willing to defer to the president. The result is gridlock.
One would expect this problem to be particularly acute when the opposing party controls the Senate. In such circumstances, the majority of the Senate can at least plausibly claim a legitimate interest in having a serious voice in judicial nominations. Thus, in President Reagan's first eighteen months in office, the Republican-controlled Senate confirmed 92% of his nominees, whereas in President Bush I's first eighteen months, the Democratically-controlled Senate confirmed only 72% of his nominees.
The reduction in Senate deference to presidential judicial nominees has proved frustrating to presidents of both parties. President Clinton bemoaned the Republican-controlled Senate's "failure to act on my nominations, or even to give many of my nominees a hearing." Such conduct, he charged, "represents the worst of partisan politics." Similarly, President Bush II complained that, because of the recalcitrance of a Democratically-controlled Senate, "we face a vacancy crisis in the federal courts, made worse by senators who block votes of qualified nominees." "Such delays," he added, "endanger American justice."
The stunning thing about the first eighteen months of President Obama's term, however, is not only that the Senate has confirmed only 42% of his nominees - the lowest confirmation rate in American history, but also that this is happening even though the Democrats hold a 59-41 majority in the Senate.
Thus, it is no longer the majority that is blocking judicial confirmations, but a fiercely obstructionist minority. The practice of minority senators blocking judicial confirmations did not begin in 2009, but the Republicans currently in the Senate have turned obstructionism into an art. Using a variety of parliamentary maneuvers, the 41-member Republican minority has successfully paralyzed our federal courts - even with respect to nominees who have been unanimously approved by the bipartisan Senate Judiciary Committee.
Of course, Senate Democrats are also accountable for this state of affairs. It is distressing that they do not seem to care enough about the federal courts to use their majority status to limit this chicanery. Ultimately, though, the primary blame must rest with Senate Republicans -- and this is especially true in light of the fact that, to the chagrin of liberals, President Obama, unlike President Bush II, has put forth a slate of nominees who are quite moderate in their views.
In such circumstances, if the word "obstructionism" has any meaning, this is it. The cynically partisan course of conduct of Senate Republicans on this issue threatens the quality of American justice, and therefore, the rule of law itself.