Where are all the federal judges? Why 90 empty seats threaten American justice

Even as 100 senators in the 112th Congress take their seats today, there will be more than 90 seats still left vacant – an absence that threatens the fair and speedy delivery of justice. These empty seats are the more than 90 vacancies in the 858 appellate and district court judgeships.

The empty positions are victims of the stymied federal lower-court judicial selection process that vexed the 111th Congress. Both parties’ inefficiencies and Republican obstinacy blocked lower court nominations for extended periods. Though recent Senate confirmation of numerous lower court judges is cause for praise, many vacancies remain, comprising eleven percent of all federal lower court seats. President Barack Obama must now promptly nominate, and the new Senate must confirm, lower court nominees so that the bench will be at full strength.

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The unfilled judgeship openings first reached 90 in the summer of 2009 and have essentially remained over that number ever since. The tradition of a stalled judicial nomination process goes back further than that, however. For more than two decades, Republican and Democratic accusations and countercharges, as well as nonstop retaliations, have plagued judicial selection. The process is thwarted principally due to divided government. But divided government provides no excuse. Democrats now control the White House and the Senate, albeit with a reduced majority, but they must keep attempting to work with Republicans to end or ameliorate these counterproductive dynamics.

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Process stymied by partisan play

Who is to shoulder the blame for a process perverted by partisan gamesmanship? Certain observers criticized Mr. Obama for nominating too slowly during 2009. However, the administration substantially quickened the pace last year, nominating twice as many lower court judges as in 2009. The White House was also thorough in its consultations, seeking the guidance of Republican and Democratic senators from jurisdictions in which vacancies materialized – all before official nominations. Obama then submitted consensus nominees of even judicial temperament, who are very intelligent, ethical, industrious, and independent, as well as diverse vis-à-vis ethnicity, gender, and ideology. Sen. Patrick Leahy (D) of Vermont, who chairs the Senate Judiciary Committee, promptly conducted hearings and votes, placing nominees on the Executive Calendar.

And there is where most of them languished for months, awaiting votes.

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So should we finger Republicans as the chief culprits of judicial selection mired in dead ends? Certainly, Republicans should attempt to be more cooperative. The minority held over virtually all the nominees’ votes for one week without convincing reasons in the Judiciary Committee. However, the principal bottleneck has been the Senate floor. Senate Minority Leader Mitch McConnell of Kentucky did not swiftly enter time agreements to schedule floor votes. The Senate unanimous consent procedure allows one anonymous senator to stop floor votes, and this practice has stalled nearly all nominees. Republican insistence that the Senate conduct recorded votes for practically all circuit and many district nominees has also wasted scarce time. When the upper chamber has ultimately voted on nominees, the Senate usually confirmed most by significant majorities – and a number unanimously.

Republican blockades

Most troubling has been Republican refusal to hold votes on uncontroversial, well-qualified nominees, inaction which contravenes a venerable Senate tradition. Republicans' obstruction was responsible for Obama having the lowest percentage of confirmed lower court nominees (as of mid-December) of any president over the past 30 years.

In the Year-End Report on the Federal Judiciary, Chief Justice John Roberts decried each political party’s blocking of judicial nominations, saying that “this has created acute difficulties for some judicial districts, [which] have been burdened with extraordinary caseloads.” As will be the case for many decisions that the new Congress faces, confirming judicial nominees will require both parties to work together. Mr. Roberts warned that an “urgent need for the political branches to find a long-term solution to this recurring problem” remains.

Vacancies in critical courts

The 179 appeals court judgeships – 16 of which are open – are critical, as the 12 regional circuits are the courts of last resort in their regions for 99 percent of the appeals. The crucial Second Circuit has vacancies in 2 of 13 judgeships. To date, Obama has tapped 25 excellent nominees, and he should continue cooperating with Mr. Leahy, Senator Majority Leader Harry Reid – who arranges floor debates and votes, and their Republican analogues to facilitate confirmation. The Senate approved 16 of the nominees, so Obama must now promptly re-nominate the nine prospects who received no floor action and tap nominees for the other seven vacancies. The chamber must then expeditiously confirm the nominees.

The 679 district judgeships – 77 of which are empty – are also vital because district judges conduct federal trials and determine the facts, while appellate courts sustain on average 80 percent of appeals from these judges' decisions. The Central District of Illinois has vacancies in 3 of 4 authorized judgeships. The Northern District of Georgia has openings in 4 of 11 judgeships. In this case, Obama has nominated 78 very capable people. The Senate has confirmed 44, so Obama must rapidly re-nominate the 34 candidates who secured no floor votes and tender nominees for the remaining 45 openings. And then the Senate must promptly approve these nominees.

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The vacancies in those federal appeals and district court judgeships erode swift, economical, and fair case resolution. Heeding Chief Justice Roberts’ admonition, President Obama and the new Senate must put aside partisan division, and act with urgency and efficiency to swiftly nominate and confirm qualified judges for these many open seats.

Carl Tobias is the Williams Professor at the University of Richmond Law School.