The Cost Of The Judicial Vacancy Crisis, Or Why #heblowsalot Was An Anomaly

Yesterday, Gov. Sam Brownback (R-KS) lost a week long political standoff with an eighteen year-old high school student. ThinkProgress has had a lot of fun mocking Brownback for this incident, and the truth is he deserves to be mocked. The teenager — Kansas student Emma Sullivan — did nothing more than exercise her First Amendment right to criticize public officials, and the Brownback Administration’s decision to intimidate Sullivan for engaging in protected speech was both cowardly and disrespectful to the Constitution.

But the truth is that Sullivan was also very, very lucky. Shortly after Sullivan tweeted out her now famous “#heblowsalot” tweet, the governor’s office complained to her high school administration and Sullivan was called into the principal’s office and ordered to write a demeaning apology letter. At this point, it was one high school senior versus the might and prestige of the Governor of Kansas and a school leader capable of undermining much of Sullivan’s academic future. Had this balance of power remained in place, it’s all but certain that Sullivan would have silently sacrificed her constitutional rights.

Thankfully, Sullivan’s story soon became a national news story, and the governor’s might soon had to contend with a national backlash. This ending, however, is exceedingly rare. On the day that Gov. Brownback apologized to Sullivan, thousands of women worked jobs that pay them a fraction of what their male colleagues earn for the same work. Many more workers will illegally be forced to work overtime for reduced or no pay. A person was probably fired because they are gay.

Few, if any, of these people will garner headlines. Left alone, many of them will be virtually powerless against the full might of a major corporation.

Which is why the judicial vacancy crisis — a crisis born in large part from the Senate GOP’s unprecedented campaign of obstruction against President Obama’s nominees –
is a direct attack on the millions of Americans who could never hope to win this kind of standoff. On the day President Obama took office, 55 federal judgeships were vacant. Today, the number is 83 according to the Administrative Office of the US Courts. Each one of those vacancies means countless Americans waiting months or years for the only thing that can empower them to fight back against mighty corporations or an overreaching official — a court order enforcing their rights.

Yet, while curing the vacancy crisis is an essential step, more judges alone will not be enough. We also need better judges than the corporate-aligned group that currently dominate the federal bench. When the courts abdicate their own duties in favor of corporate-run arbitration, when they enable corporations to divide and conquer powerless consumers by eviscerating class actions, when they place oil interests above the law, allow corporations to buy and sell elections, or tell Lilly Ledbetter to go suck eggs, they force millions of Americans into the same position of utter powerless Emma Sullivan faced while she was being berated by her principal for exercising her constitutional rights.

Sullivan got lucky. Her story became a national outrage, and this spotlight shifted the balance of power in her favor. Most Americans will not be so fortunate. Their rights will rise or fall based on whether judges are willing to treat every American with the same regard they pay the most powerful corporations — and whether a judge will even be present to hear their case.