WASHINGTON ― If there is a hallmark issue that defines Mitch McConnell’s time as Senate majority leader under President Barack Obama, it was his obstruction of judicial nominees.
The Kentucky Republican was so intent on stymying Obama’s influence on the courts, he used every Senate procedural trick in the book to jam the confirmation process. He succeeded, too: He denied Obama a Supreme Court confirmation and slashed the number of judges the president put on the federal bench.
But he did so at the cost of driving up judicial vacancies around the country, so much so that the federal bench is now emptier than it’s been in decades and the number of judicial emergencies ― when a court is so overburdened it can barely function ― spiked from 12 to 43 in the two years since Republicans retook control of the Senate.
Alas, it’s a new day, and Republicans control the White House and Congress. The GOP leader is now ready to fill all the empty court seats he helped create.
“We have an excellent chance of clearing the deck of all the vacancies that we inherited from the previous administration, and there are quite a number of them,” McConnell said in a Wednesday interview with talk show host Hugh Hewitt. “Barack Obama did a lot of damage to the country in many ways. One of the ways was his court appointments.”
It’s a stunning assessment of the state of the judiciary by the politician who has been hurting it the most. Clearly, Republicans do have an excellent chance of filling court vacancies ― because they were the ones refusing to fill them under Obama. McConnell’s strategy of preventing Obama from filling court seats with his nominees and holding those seats open for a future GOP president to fill worked, from a shrewdly political standpoint. But it’s left the federal court system in disrepair.
There are supposed to be a total of 856 judges running the nation’s district and circuit courts. Right now, 109 of those seats are empty. A functional Senate would be confirming nearly all judicial nominees within months, but some courts have been waiting years for the Senate to fill an empty seat. There’s a federal appeals court in Wisconsin that’s been waiting 2,586 days for a vacancy to be filled ― looking at you, Sen. Ron Johnson (R-Wis.). A district court in North Carolina has had a vacancy for 4,054 days ― hi, Sen. Richard Burr (R-N.C.). That’s more than 11 years.
The problem with not filling empty judge seats is that cases on those courts get really backed up, sometimes for years. Sitting judges forced to take on heavier workloads struggle with burnout.
Still, those hurt the most are the everyday people trying to get their day in court. It might be someone who got kicked off of Social Security and is due compensation. It might be someone who lost their home, or someone suing an employer for discrimination. Small businesses rely on federal courts to resolve all kinds of disputes as well. When these cases get backed up, justice for them is delayed, too.
Carl Tobias, a law professor at the University of Richmond and an expert on federal judicial selection, called it “preposterous” that McConnell would gloss over the damage he’s done to the courts.
“The major reason the federal courts have record vacancies is Republican obstruction spearheaded by Mitch McConnell throughout Obama’s eight years,” said Tobias. He said he worries that the GOP’s efforts to hamper the judicial confirmation process may have eroded people’s faith in the role of the courts. “It shows consummate disrespect for a co-equal branch of the federal government. It also undermines public respect for the process and the government branches.”
It’s not as if Obama spent eight years nominating radically progressive judges, either. Republicans recommended many of those nominees to the White House in the first place, and then quietly worked with Obama to usher them through the Senate confirmation process. Most of his confirmed judges sailed through with strong bipartisan support.
McConnell himself voted to confirm most of Obama’s judges, and worked with the president to confirm judges for his own state. Here’s the GOP leader in December 2014, raving about the Senate unanimously confirming Obama’s nominee, Gregory Stivers, to the U.S. District Court for the Western District of Kentucky.
“I congratulate Greg Stivers on his confirmation as United States District Judge for the Western District of Kentucky. Greg is an experienced and respected civil practitioner who has represented Kentuckians diligently for nearly 30 years, and he is well qualified to serve on the federal bench. Greg has worked hard for the people and institutions of the Bowling Green area, including representing Western Kentucky University in a range of complex litigation matters. He has the temperament and judgment required for the federal bench, and will serve the people of Kentucky well as an Article III judge.”
The good news for the federal judiciary is that McConnell is finally ready to let judicial nominees get through. The thing to watch now is whether Republicans use their control of the White House and the Senate to push through nominees who aren’t just conservative but have extreme right-wing ideologies.
Democrats are limited in what they can do to stop them from doing that. But they aren’t helpless. If they’re prepared to play hardball, like Republicans did with Obama’s judicial nominees, they could lean on a judiciary committee rule to unilaterally block any nominee from their state from moving forward.