It’s doubtful that the authors of the U.S. Constitution’s elegant and — until lately — effective three-way balance of federal power contemplated what’s unfolding this year. The Senate’s failure to even consider confirming President Obama’s Supreme Court nominee is by itself a lapse in constitutional duty and an extreme exercise in partisanship.
But Judge Merrick Garland isn’t the only Obama nominee to the courts who’s getting a cold shoulder. A near-complete shutdown of judicial confirmations seems to be in effect — one that could have consequences so serious that statesmen as reasonable as former Utah Gov. Jon Huntsman and former Connecticut Sen. Joseph Lieberman warned in Time magazine last week that a constitutional crisis could be unfolding.
In addition to Garland, 41 nominations sent to the Republican-controlled Senate by the Democratic president are in a holding pattern. As of March 25, the judgeships they were nominated to fill had been vacant for an average of 564 days.
Eleven of the 41 have been vetted by the Senate Judiciary Committee and sent to the Senate floor, where action has been taken on only four judges all year. (Thankfully, one of the four was Minnesota U.S. District Judge Wilhelmina Wright, whose confirmation required extraordinary effort by U.S. Sens. Amy Klobuchar and Al Franken.) In all of 2015, the Senate acted on just 11 judicial nominees.
One of the nominees waiting for committee action is Jennifer Klemetsrud Puhl, a 14-year federal prosecutor from Fargo, N.D. She was tapped by the president in January to fill a seat on the Eighth U.S. Circuit Court of Appeals, a seven-state jurisdiction that includes Minnesota. Puhl has a stellar record that includes work on tribal matters and a leading role in prosecuting human trafficking and sexual abuse against children. She was described by a former North Dakota U.S. attorney as “about as nonpartisan as you can be.”
Though Puhl’s wait is not yet as long as many nominees’, the busy Eighth Circuit’s need for her service is great. What’s more, she represents the chance to bring needed diversity to a court that saw the appointment of only its second woman in history in 2013. That’s why the Minnesota-founded Infinity Project, an advocacy group urging more female representation within Eighth Circuit federal courts, is working hard on Puhl’s behalf.
Making an appellate-court nominee of Puhl’s caliber wait for confirmation until after this fall’s election — or longer — serves no good purpose and risks a number of bad results. It politicizes a branch of government whose effectiveness depends on a reputation for impartiality. It slows down court operations, delaying the administration of justice and impeding economically important business litigation.
And if the Senate Republican majority pays no political price for its judicial stalling, more of the same likely will ensue whenever the White House and the Senate are controlled by opposing political parties. A new pattern could be emerging: A president can appoint judges only when the Senate is in friendly hands. That’s a troubling shift in the power of the executive branch that comes at the detriment of the judicial branch. It’s a change the American public should reject.