Occasionally, I like to remind myself where we came from by reading the oh-so-passé Federalist Papers. Throughout their endorsements of the newly proposed United States Constitution, "Publius," the pen name for Alexander Hamilton, James Madison, and/or John Jay, sprinkled arguments assuring the soon-to-be American public that the scope of the federal government was severely limited and narrowly enumerated. So I presume these three Founding Fathers usually gaze down with approving chuckles when congressional gridlock deprives the federal Leviathan a meal or two. It is, after all, a bit overweight.
Usually — but not today. A new report published by the NYU’s Brennan Center of Justice has exposed the abnormally high number of federal judicial vacancies on both appellate and district courts over the past five years. In particular, the report notes, “Judicial vacancies have remained uniquely high throughout Barack Obama’s presidency… for the first time since 1992, the average number of district court vacancies has been greater than 60 for five straight years, from 2009-2013.” For the appellate and district courts, this abstract statistic reflects very concrete problems in the day to day court activities required to uphold justice: filing claims, resolving property disputes, and conducting criminal case procedures. As a result, judges are being stretched thinner and worked harder, and, as any working person or strung out college student can attest, no one does their best work at 2:00 am after three bowls of ramen and four Red Bulls.
So, who’s to blame for the gaping hole in Lady Justice’s toga? Everyone, of course. For reasons not entirely clear, President Obama has lagged behind former presidents Bush (W., that is) and Clinton in the pace of judicial nominations through their respective first terms. Obama’s lead foot was exacerbated by a particularly high number of retirements among an aging pool of judges in the district and appellate courts, a process that is mostly non-political. But make no mistake — politics are certainly at work here. Republicans have filibustered a record number of would-be-and-should-be routine district judicial nominations, presumably in order to maintain the GOP’s party’s narrow control over at least one branch of government. Republican obstructionism has been so prevalent that Harry Reid has been forced to invoke cloture rules to override those filibusters a record 20 times.
It is, of course, optimistic at best and naïve at worst to think that either the president or Senate Republicans are going to entirely disregard the eternal tug-of-war that is American politics, and, if we learned anything last week, it’s that the judicial branch can occasionally affect the daily lives of citizens more radically than the legislative or executive branches, so the stakes are indeed high. Nevertheless, the local and appellate courts are among the most vital cogs in the governmental machinery to ordinary domestic life, and to place narrow self-interest above that machinery is, in this case, an abandonment of civic duty. No, perhaps Madison, Hamilton, and Jay, who knew something of civic virtue, wouldn’t be chuckling after all.