Why Do We Need Senate Rules Reform? Look at Our Judiciary

Washington, DC – Renewed focus on how Senate obstruction is hurting our judiciary offers a reminder of why Senate rules reform – including a focus on streamlining the nominations process – is so sorely needed. Currently, 20 judicial nominees await Senate floor votes, including 12 who would fill vacancies that the U.S. Courts have declared to be “judicial emergencies.”

Senate Judiciary Committee Chairman Senator Patrick Leahy (D-VT) took to the Senate floor this week to highlight the judicial consequences of the Senate’s relentless obstruction this session.  Senator Leahy noted that Republicans are again engaging in unprecedented delay, this time, establishing a new precedent for obstructing judicial nominations during a lame duck session – including noncontroversial nominations voted out of committee with strong bipartisan support. As Senator Leahy noted, “From 1980 until this year, when a lame duck session followed a presidential election, every single judicial nominee reported with bipartisan Judiciary Committee support has been confirmed. According to the nonpartisan Congressional Research Service, no consensus nominee reported prior to the August recess has ever been denied a vote – before now.”

The consequences, as well as a potential step forward to address this obstruction, are clear. Regarding the consequences, a new Alliance for Justice (AFJ) report highlights a disturbing rise in the number of “judicial emergencies” – courts where the backlog of cases is particularly severe.  The report notes that the number of vacancies has risen over 50 percent to 83 seats; 34 of which are judicial emergencies. In contrast, during  President Clinton and President Bush’s first four years, vacancies declined by 65% and 34%, respectively. Today, nearly one out of eleven federal judgeships is vacant.

“This record gives new meaning to the term ‘obstruction of justice,’” said AFJ president Nan Aron.  “When vacancies go unfilled, Americans wait months, sometimes years to get a chance to stand up for their rights in court.  Some lose that chance entirely.   The impact is felt even by Americans who never see the inside of a federal courtroom,” Aron said.  “Federal court decisions affect every aspect of our lives.”

Jeremy Leaming of American Constitution Society reflects how the current judicial nominations crisis underscores the need for Senate rules reform: “The reality of the situation is that politics has hobbled the federal bench. Americans who need access to the courts to protect their rights are finding courts with fewer judges and mounting piles of cases to handle. Indeed, there are backlogs of cases in federals courts from coast to coast. Senate Republicans’ troublesome efforts to stall or block judicial nominations and vital pieces of legislation have helped fuel the movement for reforming the filibuster.”

So what to do about it? As Ian Millhiser of the Center for American Progress has noted, “Judgeships, ambassadorships, and other key federal jobs go unfilled—not because the nominees lack the 60 votes necessary to move nominations forward—but because the Senate simply doesn’t have enough time to vote on confirmation…Unless the senators unanimously consent to holding a vote immediately, dissenting senators may demand up to 30 hours of post-cloture debate before a vote can actually take place, and they can prevent the Senate from considering any other business during these hours of delay.”

As a result, a key provision of a potential rules reform package should address the nominations process, including shortening the amount of time required for debate once a nomination is brought to the Senate floor.