Bipartisan Home-State Senator Pressure Could Ease Judicial Vacancy Crisis

September 20, 2011
Guest Post

By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.

Justice delayed has become justice denied, as continuing, unjustifiable Senate obstruction of consensus federal judicial nominees delays resolution of urgent health, safety, environmental, and other cases.

Incredibly, Senate Floor votes on 27 judicial nominees are being blocked, four more than I decried in my September 2010 ACSblog guest post, "Federal Judicial Vacancy Crisis Deepens as Unnamed Senate Republicans Block Floor Votes on All 23 Pending Judicial Nominees."  By next week, the Senate Judiciary Committee will raise the total to 32 by approving five more consensus nominees.

The 92 current federal court vacancies are almost 50 more than the 44 I mentioned in my December 2008 ACSblog post. There are still 21 announced future vacancies, and current vacancies that the U.S. Courts have declared to be "judicial emergencies" have increased during President Obama’s term from 20 to 35.

A sweeping nonpartisan push to fill federal judgeships extends from Supreme Court Chief Justice Roberts and Justice Anthony M. Kennedy, to the American Bar Association and Federal Bar Association, to countless editorials boards and commentators from across the nation.

The Judiciary Committee has only approved President Obama’s judicial nominees who have been endorsed by both home-state senators. Yet, only one circuit court judge has been confirmed since May. As Sen. Patrick Leahy (D-VT) described today, Senate agreement to confirm the first two district judges since before the August recess is merely the tip of the iceberg:

We can act today to bring down that rate dramatically by considering and confirming 29 judicial nominations approved by the Senate Judiciary Committee that are awaiting final Senate action. With very few exceptions, the judicial nominations now on the calendar are not controversial and could be confirmed today.

Twenty-five of the 29 judicial nominations on the Senate calendar were reported unanimously, and all but one of the 29 was reported with significant bipartisan support. 

The good news is that strong bipartisan home-state senator pressure has broken, and could continue to break, the deep-freeze on confirmation of federal judges. Indeed, strong support from Republican home-state senators finally obtained up-or-down Floor votes for several much-delayed nominees I described last September.

  • Mississippi’s GOP senators finally secured (unanimous) Floor votes on 5th Circuit home-state nominee James E. Graves, Jr. and their district court nominee after they pressured senate leaders and publicly denounced lengthy delays
  • Utah’s Republican senators’ strong support was needed to schedule a belated unanimous confirmation of their home-state 10th Circuit nominee Scott Matheson, Jr.
  • North Carolina senators’ bipartisan pressure obtained delayed confirmations of their district court nominees and home-state 4th Circuit nominees James Wynn (Aug. 5, 2010) and (finally) Albert Diaz (Dec. 10, 2010), both of whom were nominated in November 2009.
  • Arizona’s GOP senators’ strong support finally resulted in the unanimous confirmation of 9th Circuit nominee Mary Murguia.

Freshmen GOP senators have also successfully supported judicial confirmations:

  • Sen. John Boozman [Ark.] supported Paul K. Holmes III who was confirmed unanimously on Feb. 7.
  • Sen. Marco Rubio [FL] supported the district court re-nomination of Roy B. Dalton, Jr. who was confirmed by unanimous consent on May 2.
  • Sen. Mark Kirk [IL] supported two Illinois district re-nominees (Myerscough and Shadid), and worked to secure their prompt confirmation without opposition in March.

Bipartisan home-state senators can ensure that I soon will no longer be able to just delete the lower numbers from this passage from my September 2010 ACSblog guest post:

Anonymous Senate Republican roadblocks, however, continue to deny floor votes to every nominee to the federal bench, regardless of need, bi-partisan support, and qualifications. These unprecedented, blanket, secret holds (filibuster threats) are unjustifiably denying floor votes to every one of the pending judicial nominees who was approved by the Judiciary Committee.

Thus, Republican obstruction blocks all nominees who would fill judicial emergencies, all of those with home-state Republican senator support, and all of the consensus nominees who were approved without opposition in Committee months ago.