Justice Kennedy Joins Call for Faster Judicial Confirmations

August 30, 2010

Supreme Court Justice Anthony M. Kennedy has joined the list of legal leaders speaking out on the slow pace of judicial confirmations to the federal bench.

During the 2010 Ninth Circuit Judicial Conference, Kennedy questioned whether the Senate confirmation process is "working the way it should be," asking lawyers and law schools to study the process to identify "neutral" principles to guide both parties through the confirmation process, according to a release issued by the United States Courts for the Ninth Circuit.

"It's important for the public to understand that the excellence of the federal judiciary is at risk," Kennedy told the Los Angeles Times. "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."

Obama's judicial confirmation rate is "the lowest since analysts began detailed tracking [of] the subject 30 years ago," according to the LA Times, "with 47% of his 85 nominations winning Senate approval so far." There are currently 102 vacancies, out of 876 seats on the federal bench.

Christopher H. Schroeder, assistant attorney general for the Office of Legal Policy, said if the current rate of replacing judges continues, nearly half of all federal judgeships will be vacant by the end of the decade.

"A determined minority is skillfully navigating the process to prevent an up-or-down vote on nominees," Schroeder told an audience during the conference. Schroeder is the co-author of Keeping Faith With the Constitution, originally released by ACS and republished this summer by Oxford University Press.

Kennedy focused in particular on the Eastern District of California, which has five active judges, "and the statistics tell us we need 15," he said.

The jurisdiction, which includes slightly more than half of the state's population, currently has six judge seats, one of which has been vacant for 18 months, according to the release.

Two bills pending before Congress, one national judgeship bill, and one limited to the California district, would add four permanent judgeships and one temporary judgeship to the jurisdiction.

"Our committed, dedicated, brilliant federal judges (in the district) are struggling with this caseload ... their dedication must be recognized," Kennedy added.

Kennedy and Schroeder join other leaders who have questioned the slow pace of judicial confirmations, including fellow Supreme Court Justice Ruth Bader Ginsburg, President Barack Obama and ACS Executive Director Caroline Fredrickson.

"We're at a point of unprecedented partisanship and bitter feuding between the two parties over judicial nominees at a level that has never happened before. And the impact is that you have nominees who are languishing for months and some of them for over a year," Fredrickson told NPR in a report on Senate obstruction of judicial nominations.

To follow developments on judicial nominations and vacancies on the federal bench, visit JudicialNominations.org.