The Broken Senate is Breaking the Courts

Merrick Garland is just the tip of a dangerous iceberg.

There have been a few cracks, but Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination is holding. The quick threat of a primary against Kansas Senator Jerry Moran (when it looked like he might break ranks) not only got him back in line, but served as a warning to any other Republican who might consider taking the Senate’s constitutional duties seriously.

Ironically, the court blockade is one of the indirect effects of the Supreme Court’s dismantling of campaign finance laws, and shows the advantage that development gives extremists in the Republican Party. A few cycles ago, the threat of whipping up a statewide primary challenge from scratch against an otherwise popular incumbent in just a few months (the Kansas Senate primary is in early August) would have been laughable. And it still would be laughable if the far Left made a similar threat against a Democratic senator over some progressive issue. But everything changes when a handful of deep-pocketed donors can call up a potential challenger and say: “We’ve got the money, are you ready to go?”

Jennifer Bendery, Huffington Post‘s congressional reporter, points out that Garland is just the highly visible tip of a much deeper iceberg: The Senate has all but stopped processing judicial nominees up and down the federal court system.

For some broader perspective, consider that Republicans have only confirmed 16 judicial nominees since becoming the Senate majority in January 2015. At this same point in President George W. Bush’s eighth year, when Democrats controlled the Senate, 40 judicial nominees had been confirmed.

… The last time the Senate confirmed a judge was in mid-February, and that was only because McConnell postponed a package of judicial nominees from 2015 into the new year. There are 15 judicial nominees ready for a confirmation vote right now, but only one of those votes has been scheduled. Another 32 are waiting on the Judiciary Committee, which hasn’t held a hearing for a nominee since January. Federal courts, meanwhile, are at 79 vacancies and climbing.

That kind of behavior almost forces the Democrats to respond in kind if the political situation reverses. To do anything else — to let the Senate resume its constitutional duties as soon as a Republican enters the White House — would mean conceding that only Republican presidents are empowered to appoint judges. Such acquiescence would guarantee a conservative judiciary for the foreseeable future.

That exemplifies why it’s nearly impossible to be the Good Government Party once the other side decides to be the Bad Government Party. And so the deterioration I’ve been tracking in my Countdown to Augustus posts goes on.

Last fall, Bendery explored the effects of a broken judicial-appointment system: overloaded judges who burn out and cases that drag on forever. Courts prioritize criminal cases for good reason: A long delay risks either leaving a predator on the streets or wrecking an innocent defendant’s life by letting him rot in jail. But something has to give, as Chief Judge Morris England of the U.S. District Court for California’s Eastern District explains:

What happens is you have to keep pushing civil cases further out. They’ve already been waiting sometimes three to four years. I get concerned when cases are so old. Memories are fading; people are no longer around. It’s not serving anyone trying to get justice.

Take that a step further: As the federal court system continues to deteriorate, any right those courts enforce deteriorates as well. Little by little, we wind up living in a country where “Yeah it’s illegal, but what are you going to do about it?” is a viable strategy.

That, in turn, creates a temptation to flip the situation around: to get even with your own illegal act, and let the other side beg for justice from the broken courts. And so the back-and-forth of political hardball begets a similar back-and-forth of hardball in everyday life.

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  • weeklysift  On April 11, 2016 at 8:24 am

    I wanted to keep this post short, so there’s a point I left out: Overburdened courts breed corruption. Imagine you’re a judge, and you already know that you’re not really dispensing justice, because you don’t have the time to give each case the attention it needs. The temptation increases to just hold an auction.

    Or maybe I don’t sell judgments directly, I just sell access: Once I’m in court I’ll follow the law, but if you want to get your case into my court, it will cost you.

  • Leon  On April 11, 2016 at 12:37 pm

    “Yeah it’s illegal, but what are you going to do about it?”

    That seems to already be the attitude of a number of corporations, such as AT&T. And in AT&T’s case, that’s been true for many decades.

    I was chatting with a German about the willingness of certain companies and individuals to completely ignore court orders in the US, and the seeming impunity with which they get away with it. Then they remarked that Germans were flabbergasted when Uber issued a press release that they would ignore a court order against them. Ultimately several Uber executives were arrested and went to trial within a few months; I can’t see that happening in the US at the present time at all.

  • Mark Hagerman  On April 13, 2016 at 7:39 am

    “…only Republican presidents are empowered to appoint judges.”

    Would that it were so! The Democrats have demonstrated they subordinate the well-being of the country to their personal interests. They are, essentially, traitors.

    • weeklysift  On April 13, 2016 at 9:02 am

      You’re free to express that opinion. But you’re not likely to convince anybody unless you have some facts.

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