Senate Republicans have found a way to retaliate, as virtually everyone thought they would. Hit by a Democratic maneuver to curtail use of the filibuster against presidential appointees seeking confirmation, the minority caucus has dipped into the thick Senate rule book for alternative methods of delay.
The Senate relies on “unanimous consent,” a device that allows for accelerated handling of routine matters, including confirmation of many White House nominations. Fail to gain unanimous consent, and the chamber slows dramatically, all the available debate time consumed. That is what has been happening of late, Republicans seeking to punish the majority, Democrats responding by operating the Senate practically around the clock, votes coming at all hours.
No surprise that tempers are short. The shame is that things didn’t need to go so far. If Republicans made too much use of the filibuster, the hope was that the parties would reach an accommodation, as they had in the past, and avoid the majority engaging in its own escalation.
In one way, Democrats did show restraint. They limited the change in the filibuster to presidential nominations. Presidents deserve much room to fill positions in their administrations, a reflection no less of voters having spoken. President Obama has encountered unprecedented delays. Now the logjam has eased, even as Republicans apply new tools for stalling.
Federal judges receive lifetime appointments. So the partisan stakes are higher, and greater scrutiny follows. Yet these nominations also deserve to move forward at a reasonable pace, again the will of voters in play, the courts reflecting the presidency changing between the parties.
Important, too, is that the federal courts have a job to perform, and that becomes more difficult when vacancies run at higher levels and the workload increases on judges. As the Brennan Center for Justice at the New York University School of Law recently explained in an analysis, that has been the pattern for the Obama years.
For a variety of reasons, a larger number of vacancies is the norm at the start of a presidential term. Then, positions are filled, and vacancies decline — except for the past five years. President Obama faced 60 openings in the district courts at the start of his presidency. The number of late has been roughly the same.
Part of that involves the White House moving too slowly to make nominations. Yet the Brennan Center points tellingly at “the vacancy gap.” Obama began his presidency with fewer vacancies than George W. Bush faced at the same point. Soon the district court vacancies climbed higher, and there they have remained, while Bush settled into a vacancy rate about half the size.
The vacancy rate has translated into higher caseloads for current judges. The Brennan Center notes that the average per-judge caseload for the past four years has been 13 percent higher than the preceding four. The analysis points out that the Judicial Conference, the policymaking body for the federal courts, has recommended the addition of 85 judgeships, the first large-scale increase in two decades. It further explains that if all the vacancies were filled, and the new judgeships added, the pending cases per district judge would be similar to the rate in the late 1990s.
The analysis notes that perhaps the most effective way to assess the burden are the declared “judicial emergencies,” a weighted calculation for gauging the vacancies and their impact on the caseload. From 2002 to 2009, the average number of emergencies ranged from eight to 18 a year. For 2010 and beyond? The emergencies climbed to 30 and lately stand at 25.
Thus, from the perspective of the federal district courts, and those they serve, it is good to see the confirmation process beginning to pick up pace, the consequences of an abused filibuster having rippled far beyond the Senate chamber.