March 20, 2014

THROWDOWN THURSDAY: Judges Matter: The Senate Should Act

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By ERIC PESNER

It’s an unfortunate truth that the Democratic Party won’t hold onto the Presidency and the majority of the Senate forever. One day, hopefully in the distant future, the Republican Party will hold all the reins of power in Washington again. When this happens, they will be able to enact whatever policies they desire — policies that would make any liberal cringe. They would be able to undo as many of President Obama’s achievements as they could get away with politically. However, there is one accomplishment of President Obama’s that they will never be able to undo: The mark that he will leave on the Federal Judiciary.

When considering the national political scene, many people think about the President and Congress making policy and Republicans and Democrats arguing about politics. However, fewer people would think about the federal court system. Despite the enormous impact that the decisions from the Judicial Branch have on the American people, from criminal procedures to marriage laws to everyone’s rights in the workplace, the Judiciary is mostly forgotten about. Sure we hear about the courts when a Supreme Court Justice retires or the Court strikes down a same-sex marriage ban, but the Judicial Branch does so much more than that. And the Republicans know it.

While the changes to the system have made the process better, it’s still not at the place it should.

Despite not controlling the Senate, the Republican Party wields enormous power in the judicial nominating process through the use of the filibuster to block the President’s nominees. Obama nominees have, on average, waited over six months to be confirmed, and half of all filibusters of judicial nominees have occurred during the Obama Presidency. The Republicans think their obstruction will be able to prevent President Obama from influencing the court system as much as other presidents have.

However, this all changed towards the end of last year. Fed up with the constant obstructionism of the Republicans in the Senate, Majority Leader Sen. Harry Reid (D-Nev.) invoked the so-called “nuclear option,” deciding to all but eliminate the ability to filibuster judicial nominees for the lower courts. To highlight the absurdity of the Republican obstructionism, the first judicial nominations that Senator Reid brought up were the three eminently-qualified nominees for the Court of Appeals for the D.C. Circuit. The Republicans had been blocking nominations for these seats because they didn’t want to see this Court, which makes decisions about federal agency activities, to have a majority of judges who were appointed by Democrats. In fact, one of the spots that was filled had been vacant since 2005, when Chief Justice John Roberts took his seat on the Supreme Court. The Senate Democrats finally realized that this situation was unacceptable.

Since the change to the Senate rules, the confirmation process has been much smoother. There are no longer any filibusters of nominees, and more judges are being approved. Nine judges have already been approved in March alone. Of course, the Republicans have been complaining, saying that their rights to have input in the process have been taken away. They’ve threatened retribution when they control the Senate again, that the Democrats won’t get a say in the confirmation process. But I think that their complaints have fallen on deaf ears.

While the changes to the system have made the process better, it’s still not at the place it should be. There are currently 86 judicial vacancies, 34 of which are classified as “judicial emergencies” by the Courts. And the blame for this vacancy rate does not solely lie on the Republicans — President Obama has only made 49 appointments to these positions.

While the speed of confirmations has improved, it’s still moving much slower than it needs to be. Although the Senate cannot completely ignore other policies until the courts are filled, they cannot leave such a situation be. The Court system is an essential part of the functioning of our country, and the Senate must ensure that it functions well.

I propose that the Senate should do nothing except confirm nominees until the situation is remedied. President Obama should select enough nominees to fill the vacancies on the courts and the Senate should swiftly act to pass them. They can start with the 23 nominees waiting for a vote right now. That might draw people’s attention to the problem.

While President Obama has enacted many important policies which will significantly affect the lives of all Americans, the effect of his judicial appointees will be felt for decades to come. Judges in this country can have a substantial effect on public policy — it was judges who ended segregation, legalized abortion and allowed the first same-sex marriages. So no matter what happens to the laws President Obama has passed after he leaves office, his policies will be secured through the decisions of the judges he appointed. Therefore he should work with the Senate to fill the remainder of the vacant judgeships — his legacy depends on it.

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