Courts

When You Hear Whining About Judicial Vacancies, Don't Get Played

It's not that they're wrong, it's that they're incredibly disingenuous about it.

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One of the perks of writing for a publication that numbers its readership using the “m” word, is the keen interest of a wide array of advocacy groups eager to keep Above the Law well-versed in their latest pet projects. The tidal wave of unsolicited press releases overwhelming the inbox can be daunting, but it’s well worth it to keep abreast of what the “people behind the people” are working on.

The disturbing part is watching vapid commentary forged by sharp advocacy groups teasing shallow narratives that get picked up and repeated without a second thought.

Two days ago, the Judicial Crisis Network sent me a tickler, asking if I would be interested in pushing out coverage of the Senate’s facially reasonably named “Gridlock Reform committee.” A statement from JCN’s Chief Counsel and Policy Director Carrie Severino was attached to the release, complaining that the cloture process is clogging up judicial confirmations. That’s not a particularly controversial sentiment. While most efforts at filibuster reform are mealy-mouthed and stupid, there’s broad consensus that something needs to be done to prevent its most egregious abuses.

But the statement goes on:

When President Trump entered office, there were 108 judicial vacancies. Today, there are 180 current and known future judicial vacancies.

Right… but why were there so many vacancies when Trump entered office? Because I’m old enough to remember the Severino running around the cable news circuit making up reasons defending Mitch McConnell’s reckless efforts to leave as many judicial positions fallow as he could on the outside hope that he’d get a Republican president willing to pack critical judicial offices with ghost hunters and Klan apologists. Every time a legal analyst talks about Trump and the courts, I sincerely question their Logical Reasoning score on the LSAT. “Trump’s nominated so many judges!” Because there were a ton of vacancies left artificially open, you dolt.

At least the Judicial Crisis Network is intellectually consistent — which is more than I can say for some groups out there — in that they think holding a naked majority in the Senate should allow that party to do whatever it wants. They cheered Harry Reid raising the nuclear option because they can read a map and understood that the GOP will, for the foreseeable future, have built-in advantages in the Senate.

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But JCN just doesn’t pipe up about their support for strict majoritarian rule as much when the Democrats have more seats. JCN’s position rests on the naïveté of the American electorate believing that cloture is troublingly anti-democratic, as opposed to a clumsy check on the fundamentally anti-democratic Senate. It’s conceivable — and, relatively recently, a reality — that the minority party in the Senate represents the will of millions more American voters.

It’s not that JCN is wrong that Senate procedures are abused, it’s that they’re so disingenuous about the crisis narrative they want journalists to uncritically spread. Spinning out JCN’s argument exposes the faulty premise at its core. If the impact that constitutes such a “crisis” is the high number of empty benches, cloture is no more pernicious than McConnell’s refusal to schedule Obama nominees that Republicans liked. The JCN statement even points to a number of nominations, like David Nye’s in Idaho, and castigates Democrats for requiring a cloture vote — that succeeded mind you — before unanimously confirming Nye. But Nye, an Obama appointee originally, could have joined the bench in 2016 except McConnell refused to schedule a vote for him. When Trump renominated Nye, it was suddenly smooth sailing. What happened? Where was the demand upon McConnell to solve Idaho’s grave judicial emergency back then?

If the problem is the Senate’s relatively consequence-free power to hold up nominations, it shouldn’t matter if that’s coming from the minority’s parliamentary games or the majority’s cynical obstructionism. When the Senate refuses to “advise and consent” in good-faith, it contributes to a crisis. If whichever party is out of the White House is free to use either tactic to drive up vacancies in the hope that they’ll someday land 60 Senate seats in a landslide, that’s not great. Institutionalizing an end to votes to close debate or abandoning blue slips or capping debate time limits are all dangerous solutions that could slip into reality the more we hype the crisis.

Cloture can check the Senate’s potential to become a tyranny of the minority, blue slips protect local input to the process, and capping debate is no solution when no one will schedule a debate. Every solution out there “solves” a short-term problem by exacerbating future risk.

The solution isn’t to rob lawmakers of the tools required to do their jobs, it’s to force them to face some consequence when they do. All nominees have to have a committee vote within 90 days and, if approved, hit the floor within 30 days after. If you want to filibuster, you actually have to grind the Senate to a halt to do it. Force objectors to face some consequences. The public might rally to the decision to stall an incompetent nominee with skeletons literally in the closet. The public might backlash against holding up a reasonable, non-partisan local litigator. But let lawmakers make that calculus and take that risk. Not all filibusters are created equal — don’t try to game around them like they are.

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So when you’re reading the paper or watching TV and notice “gridlock” become the market-tested buzzword of federal judiciary discussions, try not to get played. It’s really the least you can do for the Republic.

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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