The Senate fails an ‘advice and consent’ test on judicial appointments

Justice delayed, they say, is justice denied.

Justice delayed happens when judicial posts remain unfilled. And it is happening now with Sen. Dianne Feinstein (D-Calif.) at her home recovering from illness. Her absence deprives the Senate Judiciary Committee, normally with 11 Democratic members and 10 Republican members, of the one-vote margin that makes its majority.

The committee needs a majority to confirm most, if not all, of President Biden’s judicial nominees.

The harm to the system of justice is felt across the country. As the American Bar Association has stated, “When there are insufficient judges to handle the workload, resolution of these important kinds of cases is delayed, and . . .  the length of time that litigants and businesses wait for their day in court . . .  increase[s].”

According to David Leonhardt of the New York Times, one in 11 District Court and Circuit Court judgeships remain vacant and about 20 Biden nominations are in limbo because of Feinstein’s absence.

American Enterprise Scholar Norm Ornstein, the dean of congressional observers over many decades, wrote in The Atlantic on Thursday that there is an available cure for this ongoing damage to our justice system. During the COVID-19 pandemic, the House under Speaker Nancy Pelosi’s (D-Calif.) leadership provided for voting via proxy, but the Senate took no similar step for members to vote remotely. 

Republicans have used the failure to full advantage. Though Feinstein asked to have another Democrat to replace her temporarily on the Judiciary Committee, under the Senate’s petrified procedures, that requires the consent of all members. Republicans are not giving it, whatever their constitutional “Advice and Consent” responsibilities.

The reasons are as clear as the hypocrisy. The fewer judges whom President Biden places on the bench, the more vacancies there will be in the future should a Republican be elected president in 2024. Their nominee looks more and more likely to be Donald Trump.

In such a future, that might get us more judges like Matthew Kacsmaryk — he of the abortion pill debacle  — whom The Washington Post’s Ruth Marcus has called “the worst federal judge in America.” We know how delay worked for a Republican Senate under Mitch McConnell’s leadership in 2016. For 10 months, he refused to hold a hearing on then-Judge Merrick Garland’s nomination as a Supreme Court justice. Neil Gorsuch got nominated and seated shortly after Trump’s inauguration.

Years before that, McConnell had devised a strategy to slow-walk President Obama’s nominees. From 2013-2014, with Obama as president, the Democratic-controlled Senate confirmed 134 federal judges. In the next two years, with Republicans in control, a paltry 22 federal judges were confirmed, the lowest number in at least two decades.

And no one can forget the hypocritical contrast in October 2020 when, following the Justice Ruth Bader Ginsburg’s death, McConnell jammed through the Supreme Court confirmation of Amy Coney Barrett on presidential election eve.

Now fast forward to today. Last Wednesday, Feinstein issued a statement saying, “I understand that my absence could delay the important work of the Judiciary Committee. So I’ve asked Leader Schumer to ask the Senate to allow another Democratic senator to temporarily serve until I’m able to resume my committee work.”

Republicans’ responses failed the laugh test. On Monday, Sen. Susan Collins (R-Maine) announced her opposition: Feinstein, Collins said, has “been an extraordinary senator. She’s a friend of mine. During the past two years, there has been a concerted campaign to force her off of the Judiciary Committee. . . .  I won’t be a part of that.”

Wait! Her friend, Feinstein, asked to be replaced temporarily.

Imagine if Collins, like the character played by comedian Jim Carrey in the film, “Liar, Liar,” had a son, Max, who transformed his parent into an unerring truth-teller. She’d be saying, “I won’t honor my ill friend’s request because partisan politics is more important to me than friendship or basic courtesy.”

Then there’s Sen. John Cornyn’s (R-Texas) explanation. He said that if Feinstein retires and a new senator replaces her, he’d be fine with a permanent switch because that has happened before. “But not on a temporary basis.”

Hmmm. Why is a temporary replacement of an ill senator more troublesome than a permanent substitution? Because it‘s never happened before? Remember the 10-month stranglehold on the Garland nomination? Nothing like that ever happened before. Cornyn supported it.

Here’s what Cornyn might say if he had a son who magically converted him into an inviolate speaker of truth: “We Republicans don’t like President Biden filling judicial posts. So I make up excuses about precedent to keep from being held accountable for hurting the justice system and Americans with cases in it.”

“I’m John Cornyn. I approve this message, and so does my son, Max.”

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.