Checked, not balanced

The Obama administration is quickly gaining a reputation for its empty desks. Senior posts sit empty, while the federal judiciary—where vacancies are filled by the president and confirmed by the Senate—are increasingly in a state known as “judicial emergency.” This reflects the wider paralysis in government, where Congress and the White House have been unable to agree on a range of urgent issues, from the spiralling national debt [see p24] to key personnel changes.

Over 100 judicial seats—or 11 per cent of all federal judgeships—currently remain empty as caseloads increase. Some 36 of those vacant seats have been officially designated judicial emergencies by the Administrative Office of the United States Courts, meaning those courts no longer have the manpower to do their jobs. The problem is not just limited to federal judgeships. Senate Republicans have also obstructed Obama’s choices for senior financial and policy positions in unprecedented numbers. In early June, Nobel laureate Peter Diamond became the most recent casualty of the war on Obama’s nominees, when he withdrew his nomination to serve on the Federal Reserve. In doing so, Diamond—originally picked in April 2010—blamed Republicans for slow-walking his nomination through the confirmation process. His refusal to exist in professional limbo echoed the words, only weeks earlier, of Goodwin Liu, another failed Obama judicial nominee, who withdrew his nomination to a federal court in California, citing political obstruction.

Timothy Geithner, the treasury secretary, has warned the failure to confirm nominees will hamper efforts to combat the economic crisis: “They will make it less likely that there will be enough capable people in the regulatory bodies to bring the care and judgment necessary for the new rules to work,” he said, “creating the conditions in which the weak and poorly managed risk bringing down the financial system again.”

Nobody would dispute that the confirmation game is political, and designed to be so. Opposing-party senators have treated it as a bloodsport for decades, with each side blaming the other for politicising the process. What has changed, however, is both the pace of Senate confirmations, and the sweep of positions that are routinely obstructed. The new presumption seems to be that if a president wants any nominee at any level, that person is not to be trusted.

A recent Senate study counted 422 positions requiring Senate confirmation at the treasury, the department of homeland security, commerce, the federal housing finance agency and other departments tasked with running the country. That same study finds that the time between nomination and confirmation votes has nearly doubled since the Reagan era. While it took Reagan an average of 114 days to see his nominees confirmed, Obama’s take almost twice as long. In the first two years of Obama’s term, only 58 per cent of his judicial nominees were confirmed. George W Bush had a 74 per cent confirmation rate; Bill Clinton’s was 89 per cent.

Obstruction of judges has now spread from the appeals courts to the trial courts as well. At every level of government, more junior positions have started to warrant the same amount of blowback as senior spots.

The American constitutional system of checks and balances assumes one thing: that all three branches of government, even when they hail from different parties, believe nevertheless in government itself. That assumption is rapidly breaking down, with many Americans increasingly persuaded that government is the problem. The framers of the Constitution would no doubt be curious to see what happens when government neither checks nor balances itself, but instead runs itself aground.