Federal Judicial Vacancy Crisis Deepens as Unnamed Senate Republicans Block Floor Votes on All 23 Pending Judicial Nominees

September 30, 2010
Guest Post

By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. Mr. Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.
In my December 23, 2008 ACSblog post, I mentioned that there were 44 current federal court vacancies and described how "One of President Obama's most enduring legacies will be the nominees he selects for lifetime seats on trial courts, the circuit courts of appeal that have the final say in 99 percent of cases, and the Supreme Court."

My prediction has certainly come true for the Supreme Court, with President Obama's successful nominations of Sonia Sotomayor and Elena Kagan.

Incredibly, however, federal judicial vacancies have soared to over 100, and those that the U.S. Courts has declared to be "judicial emergencies" have multiplied from 20 to 48.

Unfortunately, as senators left town until November 15, continuing obstruction by unnamed Senate Republicans ensured that the judicial vacancy crisis will worsen. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) explained:

Republicans have allowed the Senate to consider and confirm only 41 of President Obama's circuit and district court nominations over the last two years. In stark contrast, by this date in President Bush's second year in office, the Senate with a Democratic majority had confirmed 78 of his Federal circuit and district court nominations. That number reached 100 by the end of 2002, all considered and confirmed during the 17 months I chaired the Senate Judiciary Committee.

Indeed, the expressed desire to fill current vacancies has extended across the Senate aisle. Sen. Lisa Murkowski (R-Alaska) recently said Senate rules should be changed to allow judicial nominees to more quickly be moved to a vote, that the legislative branch is to a degree holding the "judiciary hostage," and that senators should vote against nominees they don't like, not hold up the process. The Senate finally approved Jane Stranch's long-delayed Sixth Circuit U.S. Court of Appeals nomination after her home-state Senator Lamar Alexander (R-Tenn.) went to the Floor with Sen. Leahy to request a vote.

Other nominees remain frozen, however, despite announced support from Republican home-state senators who are unable to convince their colleagues to allow a vote (or are unwilling to follow Sen. Alexander's successful example). These include Utah Sens. Orrin Hatch and Robert Bennett (10th Circuit nominee Scott Matheson, Jr.); Arizona Sens. Jon Kyl and John McCain (9th Circuit nominee Mary Murguia); Mississippi Sens. Thad Cochran and Roger Wicker (district court nominee Carlton Reeves); and North Carolina's Richard Burr (4th Circuit nominee Albert Diaz and district court nominee Catherine Eagles).

Broad nonpartisan recognition of the need to fill federal judgeships includes current Supreme Court Justice Anthony M. Kennedy, the American Bar Association, and countless Editorials Boards and commentators from across the nation.

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 23 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 17 consensus nominees who were approved without opposition in Committee months ago.

Justice delayed has become justice denied. Urgent health, safety, environmental, and other cases require that judicial vacancies be filled now.