Even as Democrats reel from draconian impact of Republicans’ success at stacking the U.S. Supreme Court, the Biden administration is in danger of leaving scores of lower-court federal judgeships vacant by the end of this year — at which point, a Republican Senate might be in place to continue pushing the bench far to the right of America.
The reasons for the delays include hesitancy from the Biden administration and top Democrats to strain procedural norms — unwritten rules and standards of conduct that Republicans have in fact already torched. This is one area where the White House and the slim Democratic Senate majority can and should act unilaterally, and immediately, before it’s too late.
Under the Constitution, federal judges are nominated by the president and confirmed or rejected by the Senate. That fairly simple principle is more complicated in practice, with a process of Senate-made rules and traditional norms long guiding how the process is carried out. For example, presidents traditionally let senators recommend which judges should be nominated to fill vacancies in their home states, through what’s known as a “blue slip” process.
But norms in general related to judicial appointees — like so many other political norms today — have been so frequently violated by Republicans that it’s folly for Democrats to damage their own agenda out of respect for them.
The ultimate example, of course, is Senate Minority Leader Mitch McConnell’s hypocritical schemes to stack the Supreme Court, holding one vacancy open for the last 11 months of Barack Obama’s presidency and denying his right to fill it, then ramming through confirmation of Donald Trump’s final nominee shortly before Trump’s own term ended. By breaking long-standing norms (and then breaking even his own new, made-up standards), McConnell engineered the Supreme Court conservative supermajority that is now imposing its ideology regarding abortion rights, guns, the environment and more.
What often looks like haplessness from the Biden administration and top Democrats is actually something more admirable: a desire to adhere to norms and operate fairly, even in the face of an opposing party that no longer does either. This is why, for example, some leading Democrats continue to resist calls to do away with the blue-slip process and take other steps that would allow the White House and the Democratic Senate to more quickly fill all remaining vacancies before Republicans’ expected takeover in January.
That tradition-busting reluctance should stop, and the party should do whatever it legally can to fill every vacancy as soon as possible. America’s political system is deeply dysfunctional right now. Balancing out GOP radicalism on the bench with more responsible judges where possible won’t be a cure-all, but it’s a far better strategy than allowing the party that is the source of the dysfunction to inherit those empty seats.
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