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.
You do not have a justice system and that is part of the overall problem of your nation.
If you do not believe me, why do you have more past and present war criminals walking the streets; more CEO's and Government officials (like Paulson and Bernake) walking the streets?
A homeless man stealing food gets 25 years while the others walk? That is justice?
Your president should fill EVERY VACANT Government judgeship position with recess appointments, PERIOD.
Sorry for leaving out my verb.
However, the author has found some way to call it a Republican problem and disingenuously refers only to the current state of politics where Obama has only a 59-vote majority.
The current state of affairs is the result of a trend. It is not particularly remarkable. The author is like a baseball announcer going through his database of stats trying to find some contrived filler for his color commentary.
Just recess appoint everybody who's been waiting in line and be done with it. The GOP is not out to help, so stop playing footsie with them and fill the jobs that need filling.
Yours Truly,
The Voters
Is that why they were elected to be the minority in both houses of congress?
Sorry for the facts, but your argument makes no sense.
Hell, if a recess-appointment was renominated for the lifetime appointment, they'd be scrutized by how much coffee they drink in the morning. Sigh.
Up until 1932 the US Supreme Court was a neutral institution that only interpreted the Constitution as it was originally intended to be interpreted. Between 1933 up until Reagan started to appoint constitutionalists judges the court was a completely activist court changing the Constitution by judical activism, legislating from teh bench.
It makes me sick when I hear somebody call a constitutionalists a judicial activist. In fact they are not. The only want to interpret the constitution and uphold the role of the Supreme Court.
The reason judges have not been appointed, only 42 %, is very simple The era of activist judges is over. The majority of the US people want to get back to the original interpretation of the Supreme court and therefore judicial activist judges are stopped. By judicial activism I mean judges that believe in a living constitution, that judges should make law.
The Warren Court was faced with an American society which had veered so far from the intent of our Constitution and Bill of Rights that it was notable for the extremes to which had been legally adopted. Brown v. Board of Education, Roe v. Wade, and several criminal cases were reversed to correct these injustices.
Reagan, who showed how much he relied on Nixon's southern strategy by announcing his candidacy from the town where four civil rights activists were murdered during the '60s, attempted to stem the tide by appointing his own activists. Those activists were caught in the Supreme Court's own rule of honoring prior decisions of the court to keep down the number of appeals.
Since then, there has been a constant battle between the two extremes with the Republicans wanting to create new law by referring to the intent of the drafters of our Constitution while the Democrats want to make the Constitution into a dynamic document which reflects the needs of the time.
In my opinion, you are a hypocrite who selectively edits our history in order to give your comments a veneer of honesty.
Liar!
The infamous Supreme Court decision Dred Scott and the Jim Crow laws was in fact an interpretation as you say "making the Constitution into a dynamic document which reflects the needs of the time." The needs of the time was to subjugate the slaves and after the Civil War not to give them full citizen rights as spelled out in the Constitution. Again the onus is fully owned by the Democrats. This is what is legal jargon is called legal positivism, that the law is hat the law giver says it is, that there are no such thing as natural unalienable rights such as those outlined in the Constitution. It is i the opposite of Constitutionalism.
The Warren Court was even worse from a constitutional point of view than the Frankfurter Court. The latter at least adhered to the Constitution, the Warren Court just threw it into the waste basket like a old dirty napkin!
Democrats and liberals should be very, very careful what they wish for!
Your government has not really protected you since 9/11. Quite the contrary, they use that lame excuse for taking away your rights stated in your constitution.
I daresay our most noted Presidents truly SHINE in comparision to the marble blockheads. Jefferson, Lincoln, TR, FDR, JFK - who knows, Obama could still make the list, but he's got a lot to do first.
Why do republicants hate democracy?
The republicans acted on behalf of and according to the will of the people they were elected to represent.
Looks like the republicans respect democracy more than the president does.
the president has the power to appoint judges, the opposition won't let him, the rest of your argument is tripe.
2. Majority? If that were the case, in either the country or the Senate, I'd be far more understanding of Republican actions (although still personally horrified). The primary gist of this article is that the Republicans neither are a majority nor represent a majority, and are STILL getting in the way of district court judge nominations.
Recess appointments
But of course that would take a spine and conviction unfortunately there is not much of either in the democrat party.
Or not.
Recess appointments are not the best strategy for right now.
The reason Obama should NOT make recess appointments this year is because recess appointments made now would expire when the next congressional session starts in January - five months from now. The best thing to do would be wait until the first recess AFTER the first of next year, then the appointments would last closer to two years (until the end of that next session). But remember that even nominees that are appointed during recess must be eventually confirmed by the senate in order to make them permanent. Besides, it would not be fair to ask the nominees to give up their current jobs this year in order to take a recess appointment that would only last less than FIVE MONTHS.
And by the way -- DEMOCRATIC party.
But not if the other person is a malignant, manipulative, self-interested, hypocrite and scoundrel.
In that case, without any genuine principle at stake, contributing knowingly to the paralysis of the justice system is simply malicious, subversive and counter to the wellbeing of our nation.
In other words, Republican ideology in action.
But they're professional politicians. Our system has incentivized this particular set of behaviour and historically, it's proven quite lucrative.