The Republican-controlled Senate could force a stalemate on judicial nominations, leaving dozens of seats empty or attempting to force Obama to seek out more conservative judicial nominees, according to The National Law Journal.
Without the possibility of a Supreme Court opening, the emboldened Republican-majority could resort to the obstruction often seen throughout the Obama administration — framing judicial nominations as a contentious issue that could lead to obstruction all the way up until new Presidential leadership is chosen in 2016.
Going into the 114th Congress, Obama has largely already filled the district and circuit courts, but he has faced unprecedented levels of obstruction when it comes to judicial nominations, due to obstruction led by the Republican-controlled Senate.
Of 64 judicial vacancies in the federal courts, only seven are at the circuit level in the Third, Fifth, Sixth, Seventh, Eleventh and Federal Circuits. (President Obama has not yet named anyone for those seats.) The federal judiciary has deemed 22 “judicial emergencies” based on an assessment of judges’ caseloads in each court and how long a position has been vacant.
Two of the seats have been vacant since George W. Bush was in office. (Eastern District of North Carolina, Senior Judge Malcolm Howard’s seat has been open since 2005, and Senior Judge Royal Furgeson Jr. took senior status in late 2008.) Three of the “judicial emergencies” are in appeals courts, in the Fifth and Eleventh Circuits. Another 27 seats are expected to open up later this year and in early 2015 as judges retire or take senior status, according to the judiciary.
In 2012, Republicans accused the Obama administration of filling the U.S. Court of Appeals for the D.C. Circuit with judges who would back the White House agenda. Federal appeals courts have served as the battlegrounds over the Affordable Care Act, environmental regulations, voting rights and abortion laws, which are all expected to become front-and-center issues yet again with the new Republican leadership’s focus on socially-conservative causes.
Democrats, thankfully, have the rest of the year to attempt to push through a series of confirmations during the lame duck session. Once the Republican Senate seizes power, it’s unknown when, or if, new nominations will be cleared.