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The nomination of a Supreme Court justice is the most newsworthy addition President Trump can make to the nation’s courts, but it is only one of over 100 vacant federal judgeships he can now fill.
Trump's opportunity to reshape the judiciary from the top down comes after dozens of candidates nominated by President Obama died on the vine in the Republican-controlled Senate.
The latest summary shows that 13 percent of the country’s judgeships are waiting to be filled. That means Trump begins his term with the opportunity to pick 107 judges for lifetime appointments to federal district and circuit courts.
It’s an extraordinary number, and it’s the product of extraordinary action — or more to point, extraordinary inaction — by the GOP-controlled Senate, which failed to act on 51 judicial nominations by Obama before he left office.
"What happened during the Obama years just continued what I think people see as a downward spiral," says Carl Tobias, a professor at the University of Richmond School of Law. "And as you can see it’s not on the merits. It’s just sheer obstruction."
Tobias studies judicial selection and has followed the ordeal of one prominent local attorney who Obama nominated to fill a vacancy at the U.S. District Court here in Boston.
Her name is Inga Bernstein. She was warmly praised by the advisory committee that recommended her to the state’s U.S. senators, who in turn recommended her to the president.
"Really, really bright," says attorney Pamela Berman, who served on the advisory committee. "A 10 on the scale of brightness."
Retired federal Judge Nancy Gertner was the chairwoman of the committee.
"She is someone who had in-depth experience both on the civil side and on the criminal side, trials and appeals," Gertner says. "She was as well qualified for the position as anyone has ever been."
At the end of July 2015, Bernstein was nominated by Obama, who praised her “unwavering commitment to justice and integrity." She had plenty of time, it seemed, to clear the Senate Judiciary Committee and win a vote on the floor of the Senate.
But already the wheels in the Republican-controlled Senate were slowing.
"We knew that we had to act very quickly because there would be a point in Obama’s administration where judicial nominees would no longer get through," Berman explains.
But from that summer it took all the way until the following spring before Bernstein got a hearing before the Senate Judiciary Committee.
"It was the last two years of the Obama administration and the Republican majority was not in a hurry to confirm more of his nominees," Tobias, the law professor, says.
The problem for Bernstein appears to have had nothing to do with ideology. When it comes to evaluating nominees to district courts, which are the trial courts, Tobias says the committee generally turns to practical considerations: Can the nominee handle the caseload and keep the cases moving to resolution? Ideology generally becomes an issue when the committee evaluates nominees for the circuit courts, which handle appeals.
At Bernstein’s hearing the questions were softballs, like Texas Sen. Ted Cruz asking her what her favorite Supreme Court decision was in the last 10 years.
A month after her hearing, at the end of May, the Judiciary Committee easily approved Bernstein.
"Very little opposition, very little controversy," Tobias says. "And so she went to the Senate floor with many others."
All she and some 22 other nominees needed now was a vote by the full Senate to confirm them. But nothing happened. Meanwhile, another 28 Obama nominees were still back at the Judiciary Committee waiting for hearings or approval. And there was another nominee who was the biggest one of all.
"Merrick Garland for the Supreme Court did not even receive a hearing," Tobias says.
They all sat, and they sat, and they sat.
And with caseloads for sitting judges rising dramatically, the government has declared 42 vacant seats to be "judicial emergencies." In Buffalo, in the federal Western District of Western New York, it takes an average of five years to secure a trial date in civil cases, which often involve Social Security appeals, immigration cases, or employment law or patents.
In district courts closer to home, there is one vacancy in Rhode Island, one in Maine, and one in Boston.
"It says that the system is broken," says Gertner, the retired federal judge. "It’s one thing to talk about holding up nominations on the eve of an election. That doesn’t explain Inga Bernstein’s situation. This is a preposterous way to deal with a very, very weighty and important office."
A tradition of the Senate, Tobias says, had been to give an up or down vote to every judicial nominee approved by the Judiciary Committee with little or no opposition. But that did not happen in the case of Bernstein or the other district court nominees.
"All of those 20 could have been voted on in less than an hour if the Senate majority leader had wanted to do that," Tobias says.
"In all that time we kept thinking it’s going to happen. It’s gotta happen," Berman, who recommended Bernsein, recalls. "I thought if she can just get through the process, because she’s just so inherently qualified, it will be obvious."
But in fact, the door had already closed. Obama’s last nominee to be confirmed passed the Senate on July 6. There would be no vote on Bernstein and 22 others approved by the Judiciary Committee. Their nominations died on the Senate floor over the next six months.
And 28 more nominees died on the vine without ever getting out of committee.
According to the rules, on Jan. 3, the Senate returned all the nominations back to the White House, where President Trump now gets to make 107 picks for lifetime judgeships.
"One phenomenon we see is payback," Tobias explains. "So now it seems that Democrats may be willing to, or want to, or feel they’re forced to engage in payback given what Republicans did to President Obama’s nominees."
Democrats in this Senate certainly don’t have the power the Republicans have had. And with a Republican Senate, this president has more power than the last.
As for the courts, Tobias says, he’s cautiously optimistic about the future — while recognizing history does not bear him out.
This segment aired on February 1, 2017.
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