Editorial: Grassley ignores judicial crisis and Trump's racism

Democrats and Republicans are never going to agree on where the blame lies for the alarming number of judicial vacancies in the federal court system.

No surprise there.

But it is surprising to see the office of Sen. Charles Grassley, chairman of the Senate Judiciary Committee, dismiss these vacancies as a “manufactured crisis” undeserving of public attention. Regardless of who is to blame for the vacancies, the senator should at least recognize the value in having those critical positions filled.

This is, after all, a long-running problem. Eight years ago, federal judges began retiring or moving to “senior judge” status at a rapid clip, at times averaging one new retirement every week. It didn’t take long before the number of vacancies in the U.S. district courts had doubled, resulting in dramatically increased caseloads in certain regions of the country. In Tucson, Arizona, for example, three judges were each juggling 1,200 criminal cases. Predictably, the increased workload angered judges and fueled even more retirements.

This wouldn’t have been a problem if the president hadn’t initially fallen behind in making timely nominations and Republicans in the Senate hadn’t been so slow to confirm those nominations, with some GOP senators exercising their right to “hold over” nominees before sending them to the floor.

Since the Republicans took control of the Senate in 2015, confirmations have slowed to a crawl, with only 18 judges confirmed. At the same time, the president’s ability to fill vacancies on the federal courts of appeal have hit a brick wall, with GOP leaders openly acknowledging their intent to block any Obama nominees to the appeals courts.

Grassley likes to say Obama has had more judges confirmed at this point in his presidency than his Republican predecessor, George W. Bush — which is true. What the senator neglects to say, however, is that Obama has also had four or five dozen more vacancies to fill, and he still has eight months to serve.

The fact is, the numbers can be sliced and diced any number of ways. One can count the nominees passed out of Grassley’s committee and awaiting a vote by the full Senate; or the smaller number of judges actually confirmed by the Senate; or the larger number of nominees who have yet to receive a hearing or a Senate vote; or the number of judicial vacancies officially categorized as “emergencies” due to the caseload increases they’ve triggered. And each of those measurements can be tinkered with by simply adjusting the timeframe that is examined.

The bottom line is that Grassley and his committee have been every bit as lackadaisical in approving nominees as many of their predecessors. As Supreme Court Chief Justice John Roberts said, the “persistent problem of judicial vacancies” can, and should, be blamed on both parties. “Each political party has found it easy to turn on a dime — from decrying, to defending, the blocking of judicial nominations, depending on their changing political fortunes,” Roberts said.

Setting aside the question of who is to blame, there are currently 67 judicial vacancies in the U.S. district courts, which translates to a vacancy rate of 10 percent. That’s a significantly higher vacancy rate than Obama’s three most recent predecessors faced at similar points in their presidency, according to the Administrative Office of the U.S. Courts.

To make matters worse, the number of judicial emergencies is roughly double what it was in May 2008 and May 2000, according to the administrative office.

Regardless of who created this problem, Grassley is in a position to fix it and ensure that criminal and civil cases are being heard on a timely basis. Unfortunately, he appears to have no interest in doing so and his staff argues it’s nothing to get worked up about.

In fact, the senator’s spokeswoman, Beth Levine, says the issue of judicial vacancies is “a manufactured crisis.” She says the average vacancy rate for 2016, counting nominees to the circuit court as well as the district court, is 75.8 positions — and that at some point during every president’s term since 1991 there have been years that exceed that average.

Judge Roberts was right: Both parties have played politics with judicial vacancies, and it’s the public, who suffer long delays in having their cases heard, who pay the price.

Trump's judge comments barely faze Grassley

Sen. Charles Grassley says Donald Trump's assertion that U.S. District Judge Gonzalo Curiel is incapable of being impartial due to his ethnic heritage is of little concern, even though a President Trump would nominate judges to the federal bench.

"The president is only one-half of the process,” the Iowa senator said Monday, “and the Senate's the other half. And we're a check on the president."

But what sort of a check would Sen. Grassley be as head of the Senate Judiciary Committee? Just how diligent would our senator be in reviewing the nominees chosen by a man who has categorized Mexican immigrants as rapists and who initially refused to disavow support from white supremacists?

Just a few weeks ago, Grassley expressed confidence that Trump would nominate the “right type of people” to the U.S. Supreme Court. And this week, Grassley didn’t seem at all perturbed by Trump’s remarks about Judge Curiel, which have been widely denounced and described even by House Speaker Paul Ryan as the “textbook definition of a racist comment.”

The best Grassley could muster was this: “I would not say what Trump said.”

As Edmund Burke said, the only thing necessary for the triumph of evil is for good men to do nothing. And when it comes to Donald Trump, there are invertebrates that have shown more spine than Sen. Charles Grassley.