GOP Waging Under The Radar Campaign Against Federal Judiciary

While partisan politics getting in the way of routine business in the United States Senate is surely nothing new, Republicans are blocking some of President Barack Obama’s least controversial judicial nominees for unprecedented amounts of time, harkening back to the Southern states’ attempts at nullification, or abrogation of federal law, in the lead-up to the U.S. Civil War.

People for the American Way released a helpful chart this week that puts the extent of GOP obstruction in context: compared to the typical George W. Bush nominee, Obama’s judges are waiting far longer to even receive a vote, including many moderate jurists that sailed through the Judiciary Committee without any opposition. The result is a badly understaffed court system.

“We’ve been seeing what we know is unprecedented obstruction of both district court and circuit court nominees,” said Marge Baker, executive vice president for policy and program at People For The American Way. “And part of the reason for trying to lay it out is to basically show graphically what’s been happening. We really need to call an end to this mindless obstruction. We have a serious judicial nominations vacancy crisis.”

As a senior Illinois Judge forced to commute 90 miles regularly to keep up with his caseload put it to the Washington Post last year, “I had a heart attack six years ago, and my cardiologist told me recently, ‘You need to reduce your stress.’ I told him only the U.S. Senate can reduce my stress.”

It is tempting to look at the increased partisan polarization in the Congress over the past two decades and simply shake one’s head at a broken system. But the two major political parties are not equally culpable.

“This is part of a broader political struggle under way, and is largely a consequence of an explicit decision on the part of the Republican Party to oppose Obama in whatever he is proposing to do and to limit his impact on policy and on the courts in hopes of replacing him in 2012,” said Thomas Mann, a leading congressional scholar. “We’ve seen a ratcheting up of the length of time it’s taken to confirm judicial and executive nominees and some unprecedented steps to deny confirmation of anyone, even acceptable candidates, to certain positions, as a strategy that I’ve referred to as the new nullification. The idea is to use the power of confirmation to nullify any impact the president might have on law and policy.”

Mann pointed to the fact that the GOP blocked former Ohio Attorney General Richard Cordray’s nomination to lead the Consumer Financial Protection Bureau simply because they had voted against the law establishing it in the first place. The president ultimately used a recess appointment to fill the vacancy.

The increased political polarization is “very different and very disturbing,” said Norm Ornstein, a resident scholar at the Republican-leaning American Enterprise Institute. “The simple reality is that the polarization inside Congress has been replicated in the courts. The parties now see the federal courts as instruments for their use or furtherance for their goals or the opposite. So judicial appointments, even district court ones that used to be pretty non-ideological and non-politicized, have become pawns in this larger struggle. And it doesn’t matter if you’re dealing with someone widely regarded as qualified, it’s a slot and you want to delay as long as you can so you can get a president of your inclination to fill it.”

The question of partisanship in the legal system rose to the surface again Tuesday when Democratic and Republican appointees split evenly along party lines in the 9th Circuit Court in California, which deemed Proposition 8, the voter-enacted ban on same-sex marriage, unconstitutional. The case could ultimately be decided by the Supreme Court, drawing attention to an issue the president might like to avoid in an election year, even as he inches toward supporting marriage equality. Of course, it’s plausible that liberals will be energized by the decision and reminded of the importance of judges in setting national policy; even if Obama has failed to fundamentally transform America, he has been fairly reliable in his judicial nominations.

“It might mobilize some liberal organizations, feeding into the theme of congressional obstruction and the gridlock caused by Republicans,” said Julian E. Zelizer, a professor of history and public affairs at Princeton. “This will be a central argument for the Democratic campaign. But on its own — particularly in this kind of economy — it is not the kind of issue that will make or break the campaign.”

Indeed, GOP leadership would seem to be banking on the judicial obstruction going largely unnoticed by the public.

“This is an experiment under the radar,” Noah Feldman, a legal historian and Harvard Law professor, told The National Memo. “It’s analogous to the campaign finance absurdity that has emerged since 2010, except the public trusts the government to get this stuff right. The question is how far can they go?”



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