Senate Majority Leader Mitch McConnell has grabbed numerous headlines since the death of U.S. Supreme Court Justice Antonin Scalia by proclaiming that there would be no confirmation hearings, no vote, not even a courtesy meeting with President Barack Obama’s nominee to replace Justice Scalia before the presidential election. “This nomination will be determined by whoever wins the presidency in the polls,” Mr. McConnell said. “I agree with the Judiciary Committee’s recommendation that we not have hearings. In short, there will not be action taken.”
While Mr. McConnell’s hardball political tactics have drawn fire from both pundits and the public (A recent Wall Street Journal poll found 55 percent of all registered voters disagreed with Senate Republicans’ refusal to set Judiciary Committee hearings to vet a potential nominee for the high court, and more than 4 out of 5 in such group also said they “strongly disapproved.”), such is not new news. Since the Republicans took control of the Senate after the 2014 elections, the Obama administration has made only one judicial appointment as Republican senators have refused to sign off ahead of time on nominees for judgeships in their states. This is in stark contrast to President Obama’s predecessors since Ronald Reagan who also faced a Senate controlled by the opposing party, yet appointed between 10-18 appellate judges in their last two years in office.
Closer to home, 7th Circuit Judge John Tinder retired in October 2015. In January of this year, it was announced that Myra Selby had been nominated by President Obama to replace Judge Tinder. However, Republican Sen. Dan Coats said that the process of selecting a nominee for the 7th Circuit should be turned over to a commission because the 7th Circuit has not been declared a “judicial emergency.” It is fairly easy to read between the lines as to what will happen to Ms. Selby’s nomination.
The Senate is even refusing to consider judicial nominees that are backed by GOP senators. For example, Democratic Sen. Barbara Mikulski requested that senators take up and confirm Waverly Crenshaw, a Tennessee District Court nominee backed by GOP Sens. Lamar Alexander and Bob Corker. In response, Republican Sen. John Cornyn objected to Mikulski’s unanimous consent request on grounds that decisions about voting to confirm judges should be left to McConnell. Crenshaw’s case is especially acute insofar that the Middle District of Tennessee has been declared a “judicial emergency,” which means that judges there are juggling 600 cases each or between 430-600 cases for more than 18 months.
While the apparent political motives behind McConnell’s actions (or inactions as the case may be) continue to be fodder for political talk shows, the real back story is the dire effects such obstructionism has on the judicial branch of the federal government. The clause in Article II of the United States Constitution, which requires a president to appoint judges “by and with the advice and consent of the Senate” was obviously meant to be a check on unfettered presidential power to appoint judges. However, the current position of the Senate is much more than a check; rather, it is a full-fledged halting of the entire process – and a position that now leaves vacancies in federal district courts even where a “judicial emergency” has been declared. The result is overworked judicial officers and staff, and longer periods of time for cases to be tried or otherwise adjudicated.
The Senate’s refusal to do its job puts tremendous strain on the judicial branch of government, which is comprised of Democrats, Republicans, and everyone in between. The next time you wonder why it is taking the federal bench so long to rule on your motion for summary judgment, remember that federal judges are not at full strength – and that they are doing the best they can under the circumstances.•
Mr. Strenski is a partner in the Indianapolis firm of Cantrell Strenski & Mehringer and is a member of the DTCI Board of Directors. The opinions expressed in this article are those of the author.