Private: Stranch Confirmed to Fill Two-and-a-Half-Year Vacancy

Over a year after her nomination, the Senate voted Monday night to confirm Jane Branstetter Stranch (left) to the U.S. Court of Appeals for the Sixth Circuit.

The vote on the Senate's first day back in session will "at long last" fill a seat "on one of our nation's most important courts that had been vacant for two-and-a-half years," writes ACS Executive Director Caroline Fredrickson in an Op-Ed in The Huffington Post. But the "inexcusable delay" in Stranch's confirmation "highlights a growing problem that undermines the very spirit of the U.S. Constitution, whose 223rd anniversary we celebrate this week."

There are currently 104 vacancies out of the 876 seats on the federal bench. Of those, 49 are deemed by the Administrative Office of the U.S. Courts to be so debilitating that they are considered judicial emergencies. And the number of judicial nominees confirmed since President Obama took office is the lowest in 40 years, The Associated Press reported last week.

"Unfortunately this crisis is one of partisanship, rather than principle," Fredrickson writes. "Even as many of these judicial nominees have been voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans, a small minority in the Senate have chosen to delay their consideration, through the use of arcane and regressive procedural devices such as secret holds and the filibuster. This new approach is unprecedented."

In a letter to Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell released by ACS following the Stranch vote, six former federal judges appointed by both Republicans and Democrats decried the "excessive politicization" of the judicial nominations process.

"This situation is untenable for a country that believes in rule of law," the judges wrote. "We call on you to establish an improved process for the consideration of judicial nominations by the United States Senate."

Supreme Court Justices Anthony M. Kennedy and Ruth Bader Ginsburg have also spoken out during remarks on the slow pace of judicial nominations. And President Barack Obama denounced Senate obstruction for the second time during a press conference on Friday, calling on the Senate to "stop playing games."

But in spite of the dismay expressed by judges and others intimately involved in the process, "[t]here is clearly an enthusiasm gap over all things judicial" among members of the general public, writes Dahlia Lithwick in Slate.

[F]or all the complaints about judges who insert themselves into the legislative and cultural life of the country, judicial ‘activism' clearly cuts both ways. Whatever side you're on, the fight over gay marriage will be decided in the courts, as will the fight over regulating carbon emissions. The Voting Rights Act and health care reform laws are under attack in the courts, but so are Arizona's immigration reform and Chicago's new gun laws. Whether you support Obama's legislative agenda or abhor it, having properly functioning courts should matter, because today in America every single legislative action has an equal and opposite legal reaction.

And it's not just legislative issues that are affected by a vacancies crisis.

For ordinary Americans whose "safety, freedom or livelihoods rest upon the outcome of a court action," justice comes too late or not at all, Fredrickson writes in her Op-Ed.

To follow developments on judicial nominations and vacancies on the federal bench, visit JudicialNominations.org, and become a fan of the site on Facebook.

Access to Justice, Constitutional Interpretation, Importance of the Courts