WASHINGTON — Just a few blocks from the US Supreme Court sits what is widely considered to be the nation’s second most important judicial body.
But unlike its senior sibling, which has a full slate of judges, including two appointments made by President Obama, the US Court of Appeals for District of Columbia Circuit is fundamentally broken in ways that are rippling across Washington and the country.
It has only seven out of 11 judges, the worst vacancy rate in its history and higher than any other federal circuit court nationwide. Obama has never been able to get a nominee on the court, symbolizing the Senate’s failure to approve nominations to dozens of courts nationwide. As a result, four years after Obama took power in the White House, Republican appointees still hold a 4-to-3 majority over those named to the court by Democratic presidents, and that has resulted in a series of conservative rulings that affect the lives of millions of Americans.
The impact on Obama’s agenda, observers said, is clear. In the past several months alone, the court has weakened antipollution regulations, sided with tobacco companies, and restricted the president’s ability to make appointments without congressional approval.
And the court’s power over White House policies is about to grow exponentially. It is slated to rule on challenges to regulations written to comply with the Dodd-Frank financial regulations law, which was Congress’s chief response to the Wall Street meltdown. And when regulations made by government agencies to comply with the new national health care law are challenged, it will likely be this court that hears the cases — making its ideological balance all the more relevant.
The partisan gridlock in Washington — largely fueled by the determination of Republican legislators to block Obama’s agenda by any means — manifests itself in almost everything Washington tries to do these days. It is most visible in the ongoing budget stalement and the drama that nearly took the nation right over the so-called fiscal cliff, but the impact on the federal court system, while less obvious to the public, is no less damaging.
While the Senate’s slowness in approving judges nationwide has been noted, the practical and political impact on the courts of that holdup has received far less attention. The Senate has turned away one nominee after another — with a single Republican senator often able to block appointments without explanation — and the White House has often been powerless in response.
“It used to be the case that with judges, for the most part, Washington functioned,” said White House counsel Kathryn Ruemmler. “And that noncontroversial, good quality, fair-minded judges got confirmed in regular order.”
That is no longer the case.
In what is a growing problem infecting the nation’s federal courts — both small and large, from San Francisco to Allentown, Pa. — judges are taking far longer to gain approval from the Senate. It’s the result of a decline in decorum among senators, the willingness of the Republican minority to use tactics that were previously off-limits, and an overall rise in partisanship.
The result is that Washington gridlock is resulting in docket gridlock across the country, with courts not getting the judges they need as a result of dysfunction in the Senate.
There are currently 87 vacant seats out of 874 seats on the federal bench, continuing one of the longest periods of high vacancy rates in recent history. About a third of the vacancies are considered by the court system’s administrative agency to be “judicial emergencies” either because of how long they’ve been left open or because the affected courthouses are so busy.
The Eastern District of California is missing two of its six judges, and the remaining four on the bench are inundated with cases. The average judge nationwide handled 571 cases last year, but in this California court the judges are dealing with more than twice that number.
In Texas, a state where immigration cases dominate the docket, there are eight vacancies — two in the appellate courts and six in district courts. Most of the vacancies have been deemed judicial emergencies because of the high case loads and the time they’ve been vacant.
Courthouses in the home states of the two most powerful men in the Senate — Majority Leader Harry Reid, a Democrat from Nevada, and Minority Leader Mitch McConnell, a Republican from Kentucky — also have high vacancy rates.
The three branches of government are supposed to be equal. But because the executive branch — which nominates judges — has been unable to reconcile with the legislative branch — which approves nominees — the judicial branch is left in the lurch.Continued...