December 2014: Judicial Vacancy Crisis Ebbs, For Now

Washington Watch | December 2014
By Bruce Moyer

We have witnessed dramatic gains during 2014 in erasing the high number of vacancies that have plagued the federal bench for the past several years. With the help of Federal Bar Association (FBA) advocates across the country, significant progress has been achieved in prompting the Senate’s timely consideration and confirmation of judicial nominees.

The FBA began to take aim at the judicial vacancy crisis five years ago when they began to frustrate the ability of the courts to fulfill their Constitutional obligations. High numbers of vacancies started to slow the resolution of motions and the trial of civil cases, drive up litigation costs, and even inhibit the ability of parties to settle their differences. By November 2010, there were as many as 109 vacancies, with large numbers denoted as “judicial emergencies” by the federal judiciary.

For reasons explained below, the Senate over the past 10 months has confirmed an unprecedented number of federal circuit and district nominees. In fact, by the end of the year the Senate will likely have set a record for the most nominations confirmed during the sixth year of any presidency during the post-World War II era, according to a recent Congressional Research Service report.

Nonetheless, as of late October, 63 vacancies remained on the federal bench, more than the 45 that existed in 2006 during a comparable point in the preceding administration of George W. Bush. Also, an additional 25 future vacancies are set to arise over the course of the next year.

Why Vacancies Fell
Two developments rest at the heart of the progress achieved in 2014. The first was a controversial change in the Senate rules that Democrats affected in late 2013, invoking the “nuclear option” to require only bare-majority approval of 51 votes, instead of the supermajority of 60, for the confirmation of executive and most judicial nominees. The second development has been the heightened priority that Senate Democratic leaders have attached to confirming as many of President Barack Obama’s judicial nominees as possible before the November mid-term elections, given the possibility of losing majority control. Eleven of the thirty-three Senate races remain hotly contested and too close to call.

The first development—the Senate rule change—arose during President Obama’s first term in response to Democratic frustration over a vigorous Republican drive to block the confirmation of the President’s three nominees to the Court of Appeals for the District of Columbia, a court whose decisions bear huge import on key policy and regulatory matters. That tension prompted Senate Democrats to invoke the nuclear option in November 2013, reducing the majority requirement by nine votes, to cut off filibusters or floor debate to proceed to confirmation.

To make the rule change more palatable to Republicans, the Democrats made available up to 30 hours of debate for circuit nominees and 2 hours of debate for district nominees. While that change had the potential to harm the Democrats’ other legislative priorities and absorb a disproportionate amount of floor time, it hasn’t happened over the past year. Majority Leader Harry Reid (D-Nev.) hasn’t been particularly eager to bring other business to the Senate floor, and Republicans have not tended to force the Senate to spend the maximum time on each nomination.

Looking Ahead to 2015
Prospects for success in whittling down judicial vacancies over the last two years of the Obama Administration will depend largely on the outcome of November’s mid-term elections. If Republicans gain control of the Senate, President Obama will face a real struggle to get his nominees confirmed, and judicial vacancies could grow in number once again. Republicans already have warned they plan to delay the judicial confirmation process in retribution for Democratic invocation of the nuclear option. On the other hand, if Democrats hold on to the Senate, or even hang on by a 50–50 tie, then President Obama’s nominees will likely have a much clearer path to confirmation.

Popular attention over the next two years will understandably focus on the potential of one or more vacancies on the Supreme Court and whom the President will name. The composition of the Senate will also significantly affect what unfolds in this area. But let’s remember that, despite the important role the Supreme Court plays, responsiveness to vacancies in the federal district courts, the undisputed workhorses of the court’s system, will remain profoundly critical and subject as well to the outcomes of November’s mid-term elections.

Bruce Moyer is government relations counsel for the FBA. © 2014 Bruce Moyer. All rights reserved.

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