There are now 29 understaffed courts designated “judicial emergencies,” up from 12 when Obama took office. And those numbers don’t reflect how Senate Republicans turned even uncontroversial lower-court nominations into legislative ordeals, converting the filibuster, previously extremely rare, into a routine tool of delay, often for judges who were eventually confirmed unanimously. Only three district court nominees had ever been filibustered before Obama, but it happened to 20 of Obama’s.
In November 2013, Senate Democrats got so frustrated by the GOP’s refusal to confirm any of Obama’s nominees to the D.C. Circuit, the influential appeals court on which Garland is chief judge, that they adopted the so-called “nuclear option,” abolishing the filibuster for all judges below the Supreme Court. Going nuclear helped break the logjam for long-stalled Obama nominees, a key reason Obama’s confirmation numbers eventually caught up to Bush’s. But Democrats might regret it under the next Republican president, and the GOP is already using its control of the Senate to retaliate. In 2007-08, a Democratic Senate approved 68 Bush judges. In 2015-16, the Republican Senate has approved only 22 Obama judges, and GOP leaders have suggested they may not confirm any more.
