WASHINGTON — Putting aside the Comey controversy for a moment, there is an historically large mess in the nation’s judicial branch that may not be resolved until the end of President Donald Trump’s first term, if then.
There currently are 139 judicial vacancies — in district and appeals courts — and there’s little prospect of filling the lifetime appointments anytime soon, according to Ballotpedia. In fairness to Trump, and I know it’s hard to be fair with him, he inherited 108 of these from his predecessor.
But the Republican Senate must accept some of the blame for a policy of intransigence on confirmations during Barrack Obama’s last two years. The GOP majority was playing wait-and-see, pending the election outcome, in hopes of changing the philosophical direction of the judiciary. That included, of course, refusing to consider Obama’s nominee to the Supreme Court, forcing the court to operate short-handed for a year.
So now Trump, in trying to move the judiciary to the right and thereby fulfill one of his campaign pledges, faces filling one of every eight positions on the federal bench, a task that will require an almost super-human effort given the time needed for vetting nominations, Senate hearings and finally confirmation. While Republicans have made final approval easier by requiring only a simple majority, they must deal with the remaining ability of individual senators to block a nominee from his state by not returning a blue slip of agreement. That tradition, however, may be on shaky grounds under the circumstances.
There are 870 lifetime judicial positions. Factoring in the large number of those now serving who will be eligible for senior status by 2020, Trump could face a 50 percent vacancy problem by the end of his first four years in office, Ballotpedia numbers show.
The result could be devastating at all levels, stalling prosecutions and throwing the entire system out of whack. Trump has promised to tap a dozen or so prospects as nominees in the next few weeks as a start to his conservative overhaul of the courts, but once again, the process is not a quick one.
The problem could be magnified by a sizable hole in the corps of U.S. attorneys left when the new Attorney General Jeff Sessions asked for all those appointed by Obama to submit their resignations. There currently are about 93 of these vacancies, including major jurisdictions like New York, where traffic is heaviest.
One must add to this potential strain on every phase of the judicial system a legislative process forced to deal with the nomination and confirmation of a new FBI director and a fight over whether to appoint a special prosecutor to lead the increasingly explosive Russian investigation, which Democrats and even a mixed bag of Republicans favor despite their leadership’s objections.
It seems clear now, with some of the president’s own statements, that Comey’s firing was aimed at cooling down the Russian investigation and not as a nod to the unfairness of the director’s influence in the election. The FBI director’s determination to go steaming forward, as signaled by a request for more budgetary support for the investigation, may have tipped the scales. Comey angered Trump in several other ways and his aggressiveness obviously frightened Trump. Was Comey the origin of his own demise?
Certainly. When he decided to severely criticize Hillary Clinton’s handling of her emails at the same time he was announcing there would be no prosecution, he had stepped over the line. He compounded the mistake later by revisiting the email probe only 11 days before the election without checking evidence. The truth is that he should have been fired by Obama immediately after, if not the first, the second gaff and for clearly exhibiting the worst judgment in recent political history. Painting it any other way, as he tried to in his last appearance before the Senate, is just wrong.
Does the timing stink for Trump? You bet. But we have begun to expect a mangling of management and outrageous contradictions in the few months he has been in the Oval Office, including the arrogance he displays in nearly every decision, including the mess he and the Republicans have brought to the judiciary. The incompetence in the presidency from the top down is utterly astounding but hardly unanticipated.
A Republican operative asked me recently whether I thought he ultimately would be impeached. “Probably not,” I said. “But it won’t be because of his own lack of trying.”
Dan Thomasson is an op-ed columnist for Tribune News Service and a former vice president of Scripps Howard Newspapers. Readers may send him email at: email@example.com.