September 2011: The Judicial Vacancy Crisis Continues

Washington Watch | September 2011
By Bruce Moyer

Judicial vacancies on the federal bench remain a persistent, aggravating problem for the federal bar and for the nation. Over 10 percent of the federal bench is empty. There is no justification for the crisis to exist, and partisan one-upsmanship is the sole cause. The Senate is clearly failing to perform one of its constitutional responsibilities. It is one more reason why 88 percent of Americans currently disapprove of Congress and its performance.

As Congress returns in early September from its summer recess, there are nearly 90 vacancies in the federal courts. That number will only grow larger over the next year, with 22 retirements expected, unless the Senate changes its ways. Federal judicial vacancies have remained near or above 90 for more than two years. The Congressional Research Service recently reported that this is the longest sustained period of historically high vacancy rates on the federal bench in the last 35 years.

What is so frustrating is that only one part of the judicial confirmation process—the last part involving a full Senate confirmation vote— is dysfunctional. Over the past two years, the Senate Judiciary Committee has steadily performed its job, punctually considering federal judicial nominees and sending noncontroversial ones on to the Senate for a final vote. But the Senate minority has blocked an expedited vote on many of those consensus nominees, interminably dragging out the process. Many have languished without final Senate action for months. When President Obama took office there were 55 federal judicial vacancies; today there are 88.

As the Senate began its August recess, two dozen judicial nominees awaited a Senate floor vote. Twenty of the 24 had cleared the Senate Judiciary Committee unanimously or with strong bipartisan support. More than half of these nominees would fill seats considered “judicial emergencies” because of their workload or the length of time they have remained unfilled. Such emergencies adversely impact justice. In Arizona, the case backlog is so great that the federal six-month speedy trial rule has been waived. The average wait for adjudication of a civil case there is more than two years.

Logjams like this have not been usual in the recent past. Over the eight years of the Bush administration, from 2001 to 2009, judicial vacancies fell from 110 to a low of 34. The vacancy rate declined from 10 percent to six percent by President Bush’s third year, and ultimately to less than four percent by the end of his term. Today the vacancy rate is back above 10 percent.

When the Senate returns after Labor Day, President Obama will have nearly twice the number of vacant judgeships than either George W. Bush (54 vacancies) or Bill Clinton (55) at this point in their presidencies. While he has had fewer judges confirmed, Obama has also made fewer nominations than Clinton or Bush at the same point. Obama has sent the Senate nominees for 153 district and appeals court seats, compared with 194 for Bush and 191 for Clinton.

The FBA has continued to call upon both President and the Senate to fulfill their constitutional duties in assuring that the judicial branch is performing at capacity levels. FBA President Ashley Belleau recently wrote to the President and to Senate leaders, urging the President to ratchet up the pace of nominations and Senate leaders to better work together to assure a prompt up-or-down vote to all nominees cleared by the Senate Judiciary Committee. “The American people should not have to wait for months for the Senate to ensure the ability of our Federal courts to provide justice to Americans around the country,” Belleau said.

Meanwhile, senior judges continue to strive to keep their courts afloat. In July, Senior Judge Malcolm Muir of the Middle District of Pennsylvania died in his chambers after a clerk discovered him hunched over his desk while working on Social Security cases. The 96-year-old Muir, who served 40 years on the court, was the fourth oldest federal judge. Last December, Senior Judge James F. McClure Jr., also of the Middle District of Pennsylvania, died while working at the federal courthouse. He was 79.
Bruce Moyer is government relations counsel for the FBA.
© 2011 Bruce Moyer. All rights reserved.


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