Supreme Court

The GOP convention may be getting all of the tweets, television and attention, but it's not the only crucial political drama unfolding on the national stage.

Outside prime time, the battle over President Barack Obama's pick to fill a vacancy on the U.S. Supreme Court stretched into its 126th day on Wednesday, setting a record for the longest wait between a presidential nomination and a confirmation vote by the U.S. Senate.

The delay surpassed that faced by Justice Louis Brandeis, whose nomination by President Woodrow Wilson was held up for 125 days amid anti-Semitism and controversy over Brandeis' criticism of big business. Brandeis was the court's first Jewish justice.

“It’s the longest a single nomination has been pending,” said University of Texas law professor Steve Vladeck. “There are seats that have been open longer while multiple nominees were proposed.”

On Tuesday, Phillip Martin, deputy director of the Austin non-profit Progress Texas, staged a three-man rally in the rain outside the Houston offices of Sen. John Cornyn. 

Martin said he hopes to convince Republicans to "do their job" and vote on the nomination of Appeals Court Justice Merrick Garland.

Cornyn, a Republican, is a member of the Senate Judiciary Committee.

Sen. Chuck Grassley, R-Iowa, the committee's chairman, has said a majority of the Senate won’t support Garland's nomination during a presidential election year.

Republicans are stalling amid the specter of adding a fifth liberal voice to the court.

Obama nominated Garland to fill a vacancy created by the death of Justice Antonin Scalia, a conservative icon, in February.

Delays in confirming Supreme Court justices, and federal judges in general, have become the "new normal," said Meg Penrose, a Texas A&M University School of Law professor.

Penrose said there’s nothing unconstitutional about the Senate dragging its feet. 

But other observers say the rift between Obama and the Senate over judicial vacancies is jeopardizing access to justice in courts throughout the country.

The impact is especially heavy in federal courts for the Eastern, Northern and Southern Districts of Texas, said Vlaceck, as well as the 5th Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi.

Vladeck noted 90 vacancies in federal courts, 29 of which count as "emergencies" because they've created an "unduly excessive" workload for other judges.

A dozen of the 29 emergency vacancies are in Texas, he said.

"Needless to say, that’s only ratcheted up the burden on Texas’s current federal judges," he wrote in an email, "and guaranteed that at least some litigants aren’t getting the attention their cases deserve.”

In a recent memo, Paul Gordon, lawyer for the progressive group People For the American Way, compared the slow pace of judicial confirmations to that of George W. Bush's presidency.

In Bush's final two years in the White House, after Democrats took control of the Senate, 68 nominees were confirmed.

During the current, two-year session of Congress, he noted, the Senate has confirmed just 17 judges.

Delays are jamming up courts throughout the country, but in few places are they as starkly visible as on the Supreme Court.

Obama nominated Garland, now the chief judge of the D.C. Circuit Court of Appeals, in March. Without a ninth justice, the Supreme Court in its last term deadlocked in four cases, Vladeck noted. One involved a Texas challenge of Obama’s immigration policies.

Vladeck said the court in at least three other cases showed clear signs that it was "forced to reach some kind of unique accommodation to avoid otherwise tying, four-four."

Looking ahead to the fall, Vladeck said the court is "way behind the curve for taking cases … almost surely because of the uncertainty hanging over the ninth seat."

"Of course, any vacancy on the court would have some kind of impact, but what makes this one unique is its seemingly indefinite duration," he said.

In a New York Times interview, Supreme Court Justice Ruth Bader Ginsburg has urged the Senate to move forward and vote on Garland's nomination.

In lieu of a comment, Cornyn’s office noted an op-ed written the senator for CNN.com, rationalizing a delay until the November election, at the earliest.

“The American people made clear that they wanted a check on the Obama administration when they put Republicans in charge of the Senate in November 2014,” he wrote. "Now, we have an obligation — and full constitutional authority — to use that mandate from the people for issues that matter most to this country. And that includes the direction of the Supreme Court.”

Senate Republicans have pointed to a custom of holding up nominations submitted by a president nearing the end of a term.

But Penrose said there's also precedent for confirming a nominee during a presidential election year. 

The Senate confirmed Justice Anthony Kennedy to the Supreme Court in 1988 - the year that President George H.W. Bush won office. Kennedy was nominated by President Ronald Reagan in 1987.

“It’s hard to predict what’s going to happen,” Penrose said. “If there is a silver lining, more people are having to learn more about the Supreme Court.”

John Austin covers the Texas Statehouse for CNHI's newspapers and websites. Reach him at jaustin@cnhi.com.

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