Judicial Vacancies

  • November 21, 2013

    by Rebekah DeHaven

    Today the Senate took a historic step to change the filibuster rules for judicial nominees so that they only require 50 votes, and not 60, for confirmation. Referred to as the “nuclear option,” this rules change is a bold move by Senate leaders, and one forced upon them by obstructionist senators striving to block President Obama’s nominees. Quoting ACS President Caroline Fredrickson, “something had to give.”

    Over the course of the past month these obstructionists have halted all three of President Obama’s candidates to fill the three vacant seats on the D.C. Circuit Court. There are no credible doubts about these nominees’ qualifications. Instead, some senators tried to argue that the D.C. Circuit’s caseload doesn’t necessitate filling these vacancies, even though the Judicial Conference, headed by Chief Justice John Roberts, recommended maintaining the 11 seats on the D.C. Circuit.

    The real reason for the blockade lies in the importance of the D.C. Circuit and some senators’ desire to maintain its conservative tilt. Of the eight active judges on the court, four judges were nominated by a Republican and four were nominated by a Democrat. However, there are six senior judges, five of whom were appointed by a Republican. These senior judges routinely hear cases and participate in court decisions, so their importance should not be underestimated. Often described as the second-most important court in the country, second only to the Supreme Court, the D.C. Circuit hears many complex and regulatory cases that involve the federal government. Senate Majority Leader Harry Reid explained, “It is a troubling trend that Republicans are willing to block executive branch nominees even when they have no objection to the qualifications of the nominee... And they block qualified judicial nominees because they don’t want President Obama to appoint any judges to certain courts.” With the official government shutdown over, certain lawmakers embarked on an effort to shut down the judiciary instead.

    There are 93 current vacancies in the federal judiciary and 38 judicial emergencies throughout the country. This leaves over 10 percent of the federal judicial system vacant, hindering people’s access to the courts in a timely manner. Facing this dire reality, Senate leaders reformed the filibuster rules to ensure that President Obama’s nominees get a fair vote and are not held hostage to a partisan agenda. The change was a necessary step to stem the judicial vacancies crisis from becoming an even larger emergency in the future, and to get the confirmation process back on track.

  • October 16, 2013

    by Rebekah DeHaven

    As the government shutdown stretches into its second week, Library of Congress events remain cancelled and the National Zoo Panda Cam dark. More importantly Congress’s work on judicial nominations, already gridlocked, has been affected too. The Senate did manage to confirm a few judges. The Senate Judiciary Committee, however, postponed an October 3 hearing to vote on the nomination of U.S. District Judge Robert Wilkins to a seat on the U.S. Court of Appeals for the District of Columbia Circuit and for 5 other District Court nominees, and an October 9 hearing for the nomination of Matthew Leitman to the U.S. District Court for the Eastern District of Michigan.

    Federal courts are on the brink of exhausting their reserves. Courts across the country are considering which employees to deem “essential” and asking employees to work without knowing when they will be paid. Although a deal appears imminent, the public is finally getting a clear picture of what the landscape would look like if courts shut down, and what preparing to run out of resources has meant for our judicial system.

    But this is not entirely unfamiliar territory. Our courts have been hobbled because of insufficient funding and staffing, for a very long time. At the Fourth Circuit Judicial Conference in June, Supreme Court Chief Justice John Roberts warned, “we have sustained cuts that mean people have to be furloughed or worse and that has a more direct impact on the services that we can provide.” Similarly, Chief U.S. District Judge Ann Aiken said that the “cuts are an assault on the whole system.”

  • March 4, 2013

    by Kristine Kippins

    In a recent piece for The Washington Post retired federal appeals court Judge Patricia M. Wald cogently explains why the Senate needs to confirm some judges for one of the nation’s most important courts – the U.S. Court of Appeals for the D.C. Circuit. Judge Wald served 20 years on that court five of them as its chief judge. In part of her argument that the Senate needs to fill vacancies on that court, she noted the court’s swelling caseload.

    But swiftly after the column was published the National Review Online’s Ed Whelan left out or glossed over some facts to conclude that the numbers cited in Wald’s column were “fuzzy.”  

    Judge Wald’s column made a strong case against wobbly claims that the D.C. Circuit’s caseload is not high enough to warrant new judges. Whelan writes, “I don’t know what numbers Wald is using, but I suspect that she -- or whoever is feeding her the numbers -- may be using inconsistent denominators to generate the supposed growth.”

    Whelan argues that the caseload per judge has not increased substantially since 2005. According to him, in 2005, there were 1,463 pending cases (as of September 30, 2005), which, divided by the nine judges who were active for the full year before September 30, 2005, equals 163 pending cases per active judge in 2005. In 2013, there are 1,315 pending cases (as of September 30, 2012), which, divided by the eight judges who were active for the full year before September 30, 2012, equals 164 pending cases per active judge in 2013. Thus concluding, the caseload per active judge has not actually changed.

    The truth is that when Thomas Griffith was confirmed to the 11th seat on June 14, 2005, there were 1,313 pending cases in the Circuit (as of March 30, 2005). His appointment yielded 119 pending cases per active judge. 

    Now, there are only seven active judges on the D.C. Circuit, not the eight Whelan claims. He failed to note that Judge David Sentelle took senior status Feb. 12 of this year. When you divide the number of currently pending cases (1,315) by the seven active judges, you get 188 pending cases per active judge. 

    It makes far more sense to use the March numbers rather than the September statistics as there were 75 days between March 30 and Griffith’s confirmation, and 108 days between Griffith’s confirmation and the date Whelan uses. There is nothing inconsistent about Wald’s math. Whelan should concern himself less with using consistent denominators and focus more on using the correct ones.

  • January 30, 2013
    Guest Post

    by Russell Wheeler, Visiting Fellow, The Brookings Institution

    My recent ACS Issues Brief was not overly optimistic about the likely efficacy of various proposals to speed the nomination and confirmation of district and circuit judges in President Obama’s second term. Any significant changes, for that matter, stand little chance of adoption in the midst of contentious confirmation battles.

    A modest change to Senate procedures, though, adopted after the Brief was prepared, may shorten the time between district nominees’ Judiciary Committee hearings and any floor votes to confirm the nominations.

    Judicial nomination processing times in Obama’s first term increased substantially over those in the first terms of Presidents Clinton and Bush -- 223 days on average from nomination to confirmation for district judges, compared to 93 days for Clinton’s first term district appointees and 155 for Bush’s. And unlike in the Clinton and Bush first terms, the bulk of the time that Obama’s appointees waited came after their Judiciary Committee hearings. Once Clinton’s appointees got hearings, they waited only 30 days for their confirmation votes. Bush’s district appointees waited 54 days. Obama’s first term district appointees, by contrast, waited an average of 142 days.

    Near-eight month average wait times from nomination to confirmation have several deleterious effects, especially when combined with the over a year wait time on average between the vacancy (or its announcement) and the nomination. For one thing, obviously, a vacant judgeship is not a productive judgeship. Moreover the time potential nominees wait as senators and the White House jostle over whom to nominate, and the time actual nominees spend waiting for hearings and floor votes, can put their professional lives in limbo. Potential clients will be wary of signing on with a lawyer who’s being talked about for a judgeship, much less one whose nomination is before the Senate. Even state judges, term-limited federal judges, and government and public defender lawyers may be reluctant to become the object of extended delay and public speculation. In short, the nomination and confirmation process discourages some quality potential judges from putting themselves forward as candidates and thus serves itself as a barrier to filling vacancies.

  • November 28, 2012

    by Jeremy Leaming

    While lawmakers in Washington are consumed with reaching a budget deal, avoiding the so-called fiscal cliff, the president -- also engaged in the budget battle -- is nonetheless moving ahead on other fronts, such as trying to fill vacancies on the federal bench, which spiked during his first term largely because of Sen. Mitch McConnell’s obstructionist ways.

    The president is also continuing his efforts to diversify a bench that is still dominated by white men. Among the president’s recent nominations is Nitza I. Quiñones Alejandro for a seat on the U.S. District Court for the Eastern District of Pennsylvania. If confirmed she would be the “first openly gay Hispanic woman to serve on the bench,” LGBTQ Nation reports. The president’s efforts to create a more representative federal bench contrasts with House Republican leaders who were unable or unwilling to select a woman for the chamber’s major committees, instead,  as noted by The Huffington Post’s Jennifer Bendery, all the new committee chairs are white men.

    People For the American Way’s Marge Baker lauded Obama’s judicial selections, saying they “are emblematic of the president’s commitment to nominating qualified, diverse nominees to the federal bench.”

    It appears, however, that Republican leaders in the Senate, for the most part, are not in any rush to fill the vacancies, even though 34 of them are deemed judicial emergencies, meaning the courts are overworked, understaffed. With too many vacancies and overworked judges it makes it incredibly difficult for the justice system to function.

    But more than 23 national public interest groups are urging Senate leaders to stop dawdling on judicial nominations. In a Nov. 27 letter to Sen. Majority Leader Harry Reid and Minority Leader McConnell, the groups say that 19 pending nominations should be voted on before the next Congress.