June 2016: Judicial Vacancies Keep Rising

Washington Watch | June 2016
By Bruce Moyer

The tempest over the single vacancy on the Supreme Court has obscured the increase in vacancies on the federal district courts, where most federal judicial work gets done. And yet the pace of judicial confirmations of district court nominees has slowed to a trickle. By the time you read this, the number of empty seats on the federal district court bench will have reached at least 65—and that number will continue to climb. Overall, there will be at least 90 vacancies throughout the Article III courts—comprising more than 10 percent of the entire Article III judiciary. To put those numbers into perspective, there were less than half as many Article III vacancies—only 42—when the current Senate took office in January 2015. Since that time, the Senate has permitted that number of judicial vacancies to more than double.

Considerable numbers of these vacancies at the district and circuit levels are considered “emergencies” by the Judicial Conference because of the lengthy duration of the vacancy or the respective court’s high caseload, or both.

Earlier this year, twenty FBA chapters in five states—comprising Alabama, Florida, New York, Tennessee and Texas—wrote to their home-state Senators in joint letters that expressed their concern about the significant numbers of vacancies that have been allowed to arise on the federal bench in their states. Common language in their letters noted the impact that vacancies create for federal practitioners and their clients:

Vacancies have an especially significant impact on litigants in the federal courts, as well as the broader economy, as individuals and corporations must wait longer to have their day in court. Vacancies and delay add greater costs to already high litigation expenses. Those of us who try federal cases know the financial impact of continuances of cases that can extend for months, even years, without decision, due to insufficient bench capacity. For business clients, these costs get passed on to customers. And when the United States is a party to the case, it means that the public is paying that higher tab.

As of early May, only seventeen judicial nominees had been confirmed since the 2014 elections: 15 district nominees and 2 circuit nominees. Looking ahead, vacancies can only rise during the rest of President Obama’s term. Thirty-three district nominees and seven circuit nominees were pending at some stage in the Senate in early May. The Senate’s confirmation pace since January 2015 suggests that only a handful of them will get confirmed.

History suggests that more judges could announce their departures after the results of November’s elections are known. Already seven district judges and four circuit judges have announced they will leave active status by early 2017. As Brookings scholar Russell Wheeler, one of the most esteemed experts on the federal courts, recently predicted, the next president upon taking office could have the opportunity to name nominees to at least 75 or more district vacancies, or 11 percent of all district judgeships—a historically high number compared to the vacancies that existed at the end of the last 3 two-term Presidents.

The current nine circuit vacancies are fewer than they were at this point for the three previous two term presidents. But don’t hold your breath -- the Senate is unlikely to move any circuit nominees during the remainder of this session. Circuit judgeships are too great a prize, and there’s a historical practice of shutting off circuit judge confirmations during the last year of a presidency.
Bruce Moyer is government relations counsel for the FBA. © 2016 Bruce Moyer. All rights reserved.

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