The Jacobins And The Judiciary

Mar 13 2013 @ 11:41am

The current GOP is an inherently revolutionary institution. It has just unveiled a budget proposal so divorced from the center of public opinion, so draconian in its gutting of the safety net and so dedicated to a military more suited to a global empire than a major power it has little chance of gaining traction. But it can obstruct – and it should obstruct up to a point. But that point has long since passed and is now reaching a level of refusing to accept the winner of a general election. To wit: the president has been effectively prevented from getting almost any nominees confirmed for the federal judiciary for the past three years. To take one example, noted by Jeffrey Toobin:

Judicial appointments represent one of the great missed opportunities of the Obama Presidency. In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely.

In the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance. (Its judges—like John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg—also often wind up on the Supreme Court.) The D.C. Circuit now has four vacancies out of eleven seats… When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed.

But, since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush’s nominees got votes within weeks; Obama’s take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. “The Republican Senators are not punished for it, and they are rewarded by their base,” a senior administration official said.

Not to go all Fallows on you, but there is a false equivalency here. No president should be required to rush all his judicial appointments in that recently rare window of controlling 60 votes in the Senate. He is not equally at fault here. This should be a steady, reasonable process – especially for utterly uncontroversial nominees. The American system requires some give-and-take, some acknowledgment that when you lose an election, you cooperate with the winner and take some responsibility for important institutions, like the federal courts. And yet this core conservative instinct to preserve the constitutional order and process has disappeared in the fanaticism of the current GOP. They are behaving like moody teenagers with grudges.