Back in October, ACS Board member and journalist Linda Greenhouse issued a call to U.S. Supreme Court Chief Justice John G. Roberts. She hoped to wake up New Years Day, she wrote in The New York Times, to a headline about his year-end address that read something like, "Senate Imperils Judicial System, Roberts Says."
While none of the many headlines reporting on his address were exactly on target, Roberts delivered the type of call for reform of the judicial nominations process Greenhouse first urged several months ago, identifying a "persistent problem" in the "process of filling judicial vacancies" caused by obstruction of judicial nominations.
"This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads," Roberts wrote.
"I am heartened that the Senate recently filled a number of district and circuit court vacancies, including one in the Eastern District of California, one of the most severely burdened districts," he continued, acknowledging the 19 judges confirmed by the Senate during its lame-duck session. "There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem."
As the Senate enters its new session, there are 96 vacancies on federal court seats subject to Senate confirmation. The 43 judicial nominees who were not confirmed by the Senate before it ended its lame-duck session last term will have to be re-nominated by President Obama, and the 19 already approved by the Judiciary Committee will have to be vetted there again - some for the third time.
Greenhouse noted in her October column that a primary cause of the judicial vacancy crisis is "the Republicans' ever-present threat of filibusters and their use of mysterious ‘holds' on nominees."
Following the conclusion of the Senate's lame-duck session, several legal experts said in an ACS press release that the Senate rules are a continuing cause of the judicial vacancy crisis.
"The system is obviously broken, and many of the same people who complained about it being broken in the past are now responsible for it still being that way," said University of Minnesota law professor Richard Painter, who served as chief ethics lawyer for President George W. Bush. "Republicans and Democrats must come together to fix it."
ACS Executive Director Caroline Fredrickson identified the Senate rules as a "a key factor contributing to this record-high vacancy rate by enabling senators' continuing obstruction through filibuster threats, anonymous holds and other means."
To learn more on the judicial vacancy crisis and follow developments, visit JudicialNominations.org.