A Government That Works: Americans Want a Functioning Government

Pundits will spend months discussing and dissecting the results of our most recent elections. Whether the root cause of the results is the country’s economic situation, the flood of outside money or something else, one thing is clear: Americans are angry at gridlock and partisanship in Washington. They don’t want political squabbles and they don’t want more talking points: they want a government that works.

And a well functioning judicial branch is central to having such a government.

Sadly, despite a steady stream of highly qualified nominees, all of whom would receive the support of a strong majority of the Senate, Republican leaders have engaged in an unprecedented level of obstruction to prevent votes on individual judicial nominees. They’ve used procedural gimmicks to keep courtrooms empty and prevent the third branch of the United States government from working effectively for the American people.

The Broken Judiciary

Across the country, fewer judges are dealing with more cases and our courts are increasingly clogged. In many places, the situation has reached the crisis point, as people’s efforts to seek justice are stymied by the absence of judges to hear their cases in a timely manner.

Appellate court vacancies in five of the country’s twelve geographic circuits - nearly half of them - are official judicial emergencies. Similarly, within the 94 federal court districts, 39 vacancies have been officially declared by The Administrative Office of the U.S. Courts to be “judicial emergencies.”

That designation is applied to circuit courts for:

  • any vacancy in a court of appeals where adjusted filings per panel are in excess of 700;
  • any vacancy in existence more than 18 months where adjusted filings are between 500 to 700 per panel.

It’s applied to district courts for:

  • any vacancy where weighted filings are in excess of 600 per judgeship;
  • any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship;
  • any court with more than one authorized judgeship and only one active judge.

Currently, one in eight seats on the federal bench sits empty. With federal courtrooms shuttered, our nation’s judicial system is less and less able to carry out is constitutional responsibilities.

Many of the vacancies could be filled easily: President Obama has nominated qualified jurists, many of whom have received no opposition from Senate Republicans. Yet Republican leaders have engaged in unprecedented obstruction of judicial nominees, regardless of merit, regardless of the emergency need, and even regardless of their own approval of the nominee.

For instance, the Senate recessed before the election without confirming a single one of the 23 pending nominees approved by committee and ready for a floor vote. Eleven of these nominees – half the total – would fill vacancies officially designated by the Administrative Office of the U.S. Courts as “judicial emergencies.” Amazingly, 17 of these 23 nominees advanced through committee without opposition, so it’s not like there is any principled reason behind the Republican obstruction.

By refusing to allow votes – even on nominations that have not been opposed – Republican leaders are depriving courts across the nation of the judges needed to enforce the laws and ensure justice for all.

Ominously, the Department of Justice projects that if we continue on the current glacial pace of confirmations, fully half of the federal judiciary will be vacant by 2020.

With federal courtrooms shuttered, the consequences to American families are devastating:

  • Victims of job discrimination find it harder to take their employers to court to vindicate their rights.
  • Mom and Pop operations are less able to defend themselves against large businesses’ anticompetitive practices.
  • Negligent manufacturers whose products harm children are more able to skip paying medical costs.
  • Perpetrators of consumer fraud are allowed unacceptably long periods of time before they’re even forced to appear in court.
  • Companies poisoning families with toxic waste are held unaccountable for years before claims against them are heard.

Despite the obvious harm it does to Americans, the level of obstruction to keep our judiciary from functioning has reached historic levels, especially for district court nominations. For the average person seeking his day in court, the district court judges are critically important: They are the entry point to the entire federal judicial system, where those who have been wronged can find a fair forum to hear their claim.

As of November 19, 2010, fewer than half – a mere 43.5%– of President Obama’s district court nominees have received a confirmation vote. That stands in stark contrast to this time in the presidency of George W. Bush, when the Senate had confirmed a full 83% of his district court nominees. The figures are little better when you add circuit court nominations: The Senate has voted on only 44% of President Obama’s nominees, contrasted with 76.3% at this point in President Bush’s first term. Reinforcing these bleak figures is data on the length of time nominees have spent on the Executive Calendar awaiting votes, with President Obama’s Circuit Court nominees waiting, on average, more than five times longer to be confirmed than President Bush’s nominees did, and his District Court nominees waiting three times longer than their counterparts in the Bush Administration.

The Broken Executive

Unfortunately, the unprecedented obstruction that is weakening America’s judicial branch is also being applied to the executive branch. Through a series of byzantine parliamentary maneuvers, Republicans have regularly forced the Senate majority to delay consideration of President Obama’s executive branch nominations. A comparison with where George W. Bush’s executive nominations were by this time in his presidency is instructive.

As of November 12, the average age of non-Cabinet executive branch nominations ever placed on the Senate’s Executive Calendar (i.e., those who are ready to be taken up on the Senate floor) was 103 days, compared with only 68 days for Bush’s nominees. The average time spent by Obama’s non-Cabinet nominees on the Calendar was 36 days, compared to a mere 16 days for Bush’s nominees.

As of November 12, the average age of Cabinet nominations ever placed on the Executive Calendar was 34 days, compared with only 12 days for Bush. The average time spent on the Calendar was ten days, as compared with a mere three days for Bush. When you count both Cabinet and lower level together, President Obama’s average age was 102 days (vs. 66 for Bush) and the average time was 36 days (vs. 16 days for Bush).

By dragging their feet on the confirmation of executive branch nominees, the Senate Republican Leadership has prevented critical vacancies from being filled at essential agencies, such as the Departments of Defense, Energy, Justice and Treasury.


Senators are expected to debate a wide range of issues, and no one expects that most, or even many, of the votes Congress takes will be unanimous. But Americans should be able to expect that pressing issues will actually get a vote. Republican attempts to throw sand into the gears of government by refusing votes on President Obama’s nominees is unprecedented and destructive. When Senators refuse to do their jobs, all of us suffer.


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