The Judicial Nominations Waiting Game

February 27, 2013

by E. Sebastian Arduengo

Two hundred and twenty three days is a long time to wait for a new job. Yet, that’s the average number of days that an Obama judicial nominee must wait from nomination to confirmation.

While they’re waiting, they have to put their professional lives on hold, lest they inadvertently do anything that might stall their confirmation. And, that’s just the average nominee; many have waited much, much longer. Caitlin Halligan, one of President Obama’s nominees to the influential Court of Appeals for the D.C. Circuit has been waiting nearly three years for her confirmation to go through a bitterly divided Senate. Some say that Halligan’s nomination is controversial because of her statements on the Second Amendment and detainee rights. But, even completely uncontroversial nominees who are rated as “highly qualified” by the American Bar Association, like Bill Kayatta, who was recently confirmed to sit on the First Circuit, have languished for months in the Senate. Robert Bacharach, who was recently confirmed to the U.S. Court of Appeals for the Tenth Circuit, had his confirmation delayed in a filibuster aided by his home-state Senators.

When judges have to wait to take their posts, ordinary people have to wait increasingly longer for routine legal matters to get resolved. Right now there are 88 vacancies in the federal judiciary, about a third of those are considered judicial emergencies – where the judges on a court have so many cases that they are forced to preform judicial triage. In those courts, resolving a civil case can take years because criminal matters take higher priority on the docket, and even those can be significantly delayed despite the constitutional guarantee of a speedy trial. In some districts, there are so many vacancies that a term like “ghost court” wouldn’t be far off the mark. Six judgeships in the Eastern District of Pennsylvania, which includes Philadelphia, are vacant, along with five judgeships in the District of Arizona. There are even federal courthouses that have literally been sitting empty for years because no one has even been nominated to fill those judgeships.

The weak filibuster reform deal that was reached last month between Senate Majority Leader Harry Reid (D-Nev.) and Republican Leader Mitch McConnell (R-K.Y.) provided a few changes that promise to make the process of confirming District Court judges less an easier task. But that deal failed to include nominees to the federal appeals courts, so there’s still a long way to go to get many crucial nominations on the fast track. A good start would be to remove some of the influence senators from a nominees’ home states have in the process. Because of a tradition of “Senatorial Courtesy” nominations don’t move forward in the Senate Judiciary Committee, unless it gets statements of approval, or “blue slips” from the nominee’s home-state senators. With some of those senators assisting in the filibuster of their own nominees, it’s time for that courtesy to end.

For more ways to streamline the process of getting judicial nominations through the Senate and see Russell Wheeler’s ACS issue brief, Is Our Dysfunctional Process for Filling Judicial Vacancies an Insoluble Problem?