Going nuclear and altering the Senate rules was supposed to stop Republicans from blocking President Barack Obama's executive branch and judicial nominees. Three months later, the federal district courts are emptier than they were before.
"What we're seeing now are vacancies larger than the equivalent point in Bill Clinton's second term and in George W. Bush's second term," said Alicia Bannon, a legal expert with the Brennan Center who has authored a new analysis on judicial vacancies. "The level of obstruction that we're seeing, particularly around trial court nominees, is unprecedented, and courts and the American citizens and businesses that rely on them are paying the price."
The last straw for Senate Democrats was their Republican counterparts seeking to block Obama's nominees to the influential D.C. Circuit Court, which handles a number of important regulatory and national security cases. But the federal district courts, which hold trials that are then appealed into the circuit courts, have remained empty as Republicans have utilized more obscure methods of obstruction than the filibuster and Democrats have moved onto other priorities. According to a new analysis by the Brennan Center, there are now 80 vacancies in the federal district courts, up from 75 in November when Democrats abolished the filbuster for most judicial nominations. That's the highest number of vacancies since 1994, and it was only that high in 94 because four years earlier Congress had just created 74 new seats on the federal bench. There are now 29 judicial emergencies, which means courts where judges are overwhelmed by their caseloads.
"That's impacting businesses and individuals who are relying on courts to adjudicate their disputes," Bannon said. "This isn't really about Democrats and Republicans, this is about the functioning of our courts. When they're not functioning, it reverberates throughout our entire justice system."
As far as the Senate is concerned, it's all about Democrats and Republicans. Maintaining vacancies in the federal courts may hamper the federal legal system, but it also means preventing Obama from making appointments to the federal bench that Republicans want to see remain tilted to the right. Republicans want to see fewer federal judges striking down same-sex marriage bans and more federal judges upholding restrictions on abortion.
How could the number of vacancies still be so high? Even though Democrats changed the rules to prevent Republicans from filibustering Obama's judges, Senate rules and customs still give Republicans a number of options for obstructing nominations. Since the rule change, Republicans have refused to allow confirmations to move forward by "unanimous consent," which means that each nominee has to go through a confirmation process that can take days at a time. The other is the blue-slip process, through which Republican Senators can block nominees from their home states by refusing to signal their approval to the head of the judiciary committee, Vermont Democratic Senator Patrick Leahy. The blue-slip process is a Senate custom not a rule, and some liberal legal advocates see Leahy as allowing Republicans to take advantage of his deference towards their concerns.
Yet Leahy sounded fed up Monday evening, as he called on Republicans to stop gumming up the process. "Because of Republican obstruction we are again wasting precious time to overcome procedural hurdles just to have an up-or-down vote on these worthy nominees," Leahy said. "Senate Republicans have decided to double down and to further exhaust every means of delay at their disposal, even when a nominee is supported by those on both sides of the aisle and supported by both home state senators."
Since Obama took office, the number of vacancies has remained uncommonly high. In 2008, the average number of district court vacancies was 31 according to the Brennan Center, in 2009, it was 61, and that's the lowest it's been -- in 2014 the average stands at 78. If this level of vacancies continues until 2016, it won't just slow down the legal system, it'll give whichever party takes the White House a new opportunity to remake the federal courts in their own image.