First, Obama’s case for recess appointments is even stronger for district and appellate judges than with Garland. Independent observers have declared a “judicial emergency,” a precisely defined term indicating serious problems with the operation of the federal judiciary. While the Supreme Court has also been crippled by the Republicans’ inaction, the situation is even worse elsewhere. Dockets are overflowing, cases are backlogged, and the judiciary is unable to do its job because the Senate is playing politics.
Indeed, in the 114th Congress, the Senate has confirmed only 25 percent of judicial nominees; when Democrats controlled the Senate under President George W. Bush, the rate was 58 percent. In most cases, the nominees have not even been given hearings, let alone up-or-down votes. That is a compelling justification for recess appointments of these judges.
Second, the effect of these lower court appointments will be much greater than a single Supreme Court justice. Even if all of those judges are ultimately recalled, they will hear and decide hundreds, perhaps thousands, of federal cases in the meantime. Irrespective of partisan concerns, this will go a long way toward alleviating the backlog and enabling the federal judiciary to do its collective job.
Third, that job is about to get a lot harder.