Lithwick, Dahlia, Newsweek
Byline: Dahlia Lithwick
Why vacancies on the bench matter.
Maybe it's a failure of language. Perhaps we've been referring to it as the "judicial-vacancy crisis" for so long that nobody believes it's a crisis anymore. Maybe we should upgrade it to a national judicial disaster or the global war on the judiciary. As the Los Angeles Times reported last week, approximately one federal judicial seat in eight is now vacant, and more are opening up. But instead of attempting to fix the problem, both sides argue over who is to blame.
Barack Obama has seated fewer federal judges than any president since Richard Nixon, and despite the Democrats' majority in the Senate, 102 out of 854 seats are vacant, and less than half of Obama's nominees have been confirmed. Now cue the finger-pointing. Democrats say Republicans are deliberately gumming up the confirmation process for Obama judges, using arcane Senate procedures and threats of filibusters to stretch out the process for even the most uncontroversial appointees. They're right. Republicans respond that Democrats started this game, and that the buck stops at Obama, who got off to a slow start with judicial nominations and never bothered to make this issue a priority. They're right too.
Of course, not all blame is created equal. While it's true that Obama has been slow to put forth judges, and allowed the left-leaning American Bar Association extra time to vet his nominees, Republican obstruction has also reached new lows with this administration. As Russell Wheeler, who studies judicial vacancies at the Brookings Institution, explained to the Times, the longstanding political parlor game of stalling opposing federal-appeals-court nominations has recently "spread like a virus to the district courts." And despite some cries that Obama is stacking the bench with radical, wild-eyed liberals, the president has--with very few exceptions--nominated almost exclusively a slate of racially diverse moderates, who tend to receive near-unanimous support when they finally come to a vote. So when Senate Republicans suggest that Obama or Harry Reid is at fault for declining to stage a massive showdown over the judiciary in the Senate, it starts to sound a bit as if they are demanding greater obstruction of their own obstructionism.
But who's at fault for the judicial-vacancy standoff is only half the story. The real problem lies in convincing Americans that it matters. …