President Obama is known to be a basketball fan and has referred to the last two years of his eight-year term as the fourth quarter. The analogy doesn't work too well because in the game of Washington politics, the teams change rosters every two years. What stays constant, however, is the need to do the nation's business, and a scoreless quarter means the nation loses when it comes to maintaining the functionality of our justice system. Not doing the business of confirming judges means we lose ground as retirements mount up and vacancies translate to delays and backlogs.
Every year significant cases make their way to the Supreme Court, whether the other two branches of government are working or not. This term is no exception. Among those cases for which rulings are expected before July is one on state bans on same-sex marriage, with sweeping implications for ensuring true equality across the U.S. Another with truly life and death consequences will determine whether federal tax subsidies are available to individuals who purchase health coverage in the online health insurance marketplace (or exchange) operated by the federal government. If the subsidies are thrown out, millions will be unable to afford health insurance, and health experts predict nearly 10,000 people would die as a result.
Also pending in the Supreme Court is a case on whether a claim of disparate impact can be used to pursue a discrimination complaint under the Fair Housing Act. Disparate impact -- an allegation that a law or policy has a discriminatory effect, even though the discrimination was not necessarily intentional -- has been a key part of enforcing civil rights laws for decades. The Supreme Court will also decide on the constitutionality of using a particular drug in a death penalty protocol. And it will rule on the legality of a federal statute directing the State Department to record that the place of birth for a U.S. citizen born in Jerusalem is Israel, a case that tests presidential vs. congressional power.
These cases have one thing in common -- they came to the Supreme Court through the U.S. Circuit Courts of Appeal and originated in the federal district courts. The federal district courts, which are trial courts, heard 372,563 cases in 2012. That same year 57,501 appeals were filed with the circuit courts, while less than 90 are typically accepted for argument before the Supreme Court in any given year. So the circuit courts are really the court of last resort for the overwhelming number of cases. It also happens that most Supreme Court justices are selected from those serving on the circuit courts.
That is why in recent decades, the appointment of judges to federal courts, particularly appeals courts, has become hotly contested in the Senate, where judges must be confirmed and where the confirmation of new district and circuit court judges has basically ground to a halt. President Obama has done remarkably better than his predecessors in appointing a diverse judiciary. 42 percent have been female, compared to 23 percent female for President Bush. 65 percent are white, compared to 82 percent for President Bush. And nearly 19 percent have been African American, compared to 7 percent for President Bush. This progress will be diminished if vacancies are not filled in a timely fashion.
In 2015, it seems we are back to square one. Three months have passed with just one vote on a judicial nominee. Of the 81 vacancies on the federal bench in early April, 10 are seats on the circuit courts (54 are current vacancies and 27 are projected based on announced retirements). Votes on two circuit court nominees are pending in the Senate and sixteen nominees are awaiting confirmation to district court bench. The other vacancies as yet have no nominees.
Denying confirmation to qualified nominees violates one of the "rules" of the game -- the rule that each president will have the chance to reshape the bench to reflect his or her vision of justice. But it is not a game. Our constitutional rights, including among others the right to privacy and the separation of religion and state, as well as many practical concerns about such matters as clean air and safe food, all depend on the outcome. Justice delayed is justice denied is not just an expression -- those awaiting justice, especially individuals and their families, can suffer a great deal as their cases hang in limbo.
While many yearn for a time when the selection of judges was not so politicized, there is no going back. Americans need to become involved by making their views known to their senators and by urging the president to pick up the pace on new nominations. And we all need to be involved now, to maintain the momentum toward the goal of ensuring a fair and independent judiciary committed to constitutional rights, including reproductive rights. Inaction doesn't maintain the status quo; it means we slide backward. Unless we all get in the game, the promise of the Constitution's preamble, to "establish justice" and "secure the blessings of liberty" will recede from view.
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