In its lead article today, in what promises to be the first of a series, the Boston Globe calls out GOP obstructionism in the Senate, with particular emphasis on the broken judicial nomination process. Focusing in particular on the DC Court of Appeals, reporter Matt Viser points to a series of recent decisions by that court that have both broken precedent and restricted President Obama's ability to implement the laws and carry out his agenda. Viser insists the problem goes beyond partisan infighting and leads to very real negative consequences for the country:
The partisan gridlock in Washington — largely fueled by the determination of Republican legislators to block Obama’s agenda by any means — manifests itself in almost everything Washington tries to do these days. It is most visible in the ongoing budget stalement and the drama that nearly took the nation right over the so-called fiscal cliff, but the impact on the federal court system, while less obvious to the public, is no less damaging.
In a long piece (the .pdf of the article runs 14 pages), Viser seeks to analyze both the depth of the current problem (a 10% vacancy rate in the federal courts), the current obstacles which contribute to making the problem worse, and the historical antecedents which got us to this point. Some highlights on the flip.
While detailing other courts around the country which have been unable to fill vacancies in the recent period, leading to 87 vacant seats out of 874 total seats, most of the piece focuses on the DC Court of Appeals. This court, one of the most powerful in the country, is currently lacking four of its full slate of eleven justices, and of the seven who do serve only three were appointed by Democratic presidents. There have been no new additions to the Court since 2006, when John Roberts left to become Chief Justice of the Supreme Court.
The DC Court overwhelmingly hears cases related to the scope of federal power, and in recent years its rulings have restricted the power of the EPA to enforce the Clean Air Act and completely rewritten the presidential recess appointment power. Both cases were decided by three judge panels in which Republican nominees were in the majority. On the recess appointment case, in fact, all three judges were Republican nominees. Viser quotes Victor Williams, a Catholic University law professor who had filed an amicus brief in favor of the presidential recess power:
“Just imagine a bingo wheel... If you have seven balls to spit out to fill up the three-judge panel instead of 11, there is a real possibility there would have been a more reasoned judge on that panel. It really is a classic example that it does matter if we keep our benches full or not.”
“It is more than just dysfunctional,” he added of the confirmation process. “It genuinely is broken.”
How and why is it broken? Essentially due to Republican obstructionism. Viser cites the case of Robert Bacharach, whom Obama had appointed to fill a judicial vacancy in Oklahoma. Even though the appointment had been negotiated with senior OK senator Tom Coburn -- in fact, Coburn had initially suggested Bacharach's name to the president -- when the nomination came to the consideration of the Senate Coburn put a hold on it. Though he eventually dropped his hold last July, Senate Republicans filibustered the nomination on the grounds that it was too close to a presidential election. Last month, more than a year after he had been nominated, Bacharach got a floor vote -- and was approved 93-0.
The point is that there was no real objection to his qualifications as a judge. The Republicans are simply trying to delay the implementation of justice.
Viser finishes off the article relating the filibustering last week of Caitlin Halligan's appointment to the DC Court of Appeals. Halligan was nominated to take the seat previously held by John Roberts, and her appointment would finally restore balance between Democratic and Republican nominees on that court. However, as most readers here already know, the Senate GOP successfully blocked a vote on her appointment. The Court of Appeals remains in Republican hands, ideally situated to continue to obstruct the president's agenda.
Viser does discuss Democratic obstruction in past administrations, including the successful blocking of right-wing ideologue Miguel Estrada from the DC Court in 2003. Nevertheless, he makes it clear that the degree of dysfunction is far worse today than it has ever been, and the reason for that dysfunction is the absolute refusal by the GOP to allow President Obama to govern.