August 2016: Judicial Vacancies Move Toward Historic Levels

Washington Watch | August 2016
By Bruce Moyer

While election year politics and a Supreme Court vacancy garner headline attention, the steadily increasing number of federal judicial vacancies at the federal district court level is generating mounting concern. Historically, the Senate has permitted confirmations of district court nominees to continue during a Presidential election year, despite the slowdown in appeals court confirmations. But that trend is not holding this year and likely will push federal judicial vacancies toward all-time highs by the end of the year.

As of late June, there were 89 federal judicial vacancies. Sixty-seven of them existed at the district court level, or 10 percent of the nation’s 673 district court judgeships. That number stands at nearly twice the number of vacancies that existed at the same point in the presidency of George W. Bush and 50 percent more than existed under Bill Clinton or George H.W. Bush. Vacancies constituting “judicial emergencies”—where caseloads are particularly heavy or have existed for an extended period—are roughly double what they were at comparable times in 2000 and 2008.

And vacancy numbers are likely to increase, given the announced slowdown in judicial confirmations for the remainder of this Congress. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) in May invoked the so-called “Leahy-Thurmond” rule, which posits that in the summer of a presidential-election year the Senate will, cease its confirmation of judicial nominees, with limited exceptions. Grassley indicated the rule would kick in when Congress departs for its summer recess in mid-July.

Why Are Vacancies Rising?
How Senate Republicans and Democrats explain the current state of affairs is like listening to parallel universes. Senate Republican leaders point out that President Obama has now secured the confirmation of more judicial nominees than George W. Bush did (304) during his two terms in office. And the Senate Judiciary Committee, under the gavel of Republican Chairman Charles Grassley (R-IA), has held roughly the same number of hearings this election year as Sen. Patrick Leahy (D-VT) convened while chairman in 2008, a comparable point in time. Senate Democrats point to the doubling of judicial vacancies that has occurred since Republicans took over control of the Senate last year. Since that time, the Senate has confirmed 16 Obama nominees, while the Democratic-led Senate confirmed 58 district court judges during Bush’s last two years in office (2006-80).

But there’s also more at work. A substantial rise in the district court judge retirements and elevations to senior status have fed the vacancy count. Almost 50 percent more judges (239) have risen to senior status under Obama than did under George W. Bush, according to judicial records.

The Consequences of Vacancies
What’s clear is that vacancies can have an impact, and that impact is growing. When FBA members visited with their lawmakers during Capitol Hill Day in May, they explained how high numbers of vacancies on the federal bench harm the delivery of justice and the economic interests of litigants. That impact is worsened further by increased filings of lawsuits, without comparable increases in judgeships.

Civil and criminal filings in the federal district courts are substantially higher than they were 20 years ago—rising 28 percent since FY 1993. But the number of federal judgeships created by Congress to handle these filings has barely changed, growing by only 4 percent in the same two-decade period. During that same time, the time required for handling both civil and criminal cases in the federal courts increased, according to the Transactional Records Access Clearinghouse at Syracuse University. In fact he Syracuse University court data shows that the average time to trial in federal court civil lawsuits increased by a whopping 63 percent over a ten-year period ending in 2013.

Texas, a state with four judicial districts, some with the highest caseloads in the country due to immigration and drug prosecutions, illustrates the problem. Ten of the state’s 52 federal district judgeships have remained vacant for more most of the last two years, largely due to delay by their home state Senators in forwarding potential nominees to the White House. Meanwhile, three of those four Texas judicial districts rank among the top ten judicial districts in the nation with the highest civil and criminal workloads. The vacancy situation is worsening, and our district courts, the workhorses of the federal judicial system, can ill afford to pay the price.
Bruce Moyer is government relations counsel for the FBA. © 2016 Bruce Moyer. All rights reserved.

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