Where are all the federal judges? Why 90 empty seats threaten American justice
Partisan play – especially Republican obstinacy – has blocked judicial nominations at a record rate. President Obama and the 112th Senate must now quickly nominate and confirm judges for more than 90 lower court vacancies. The swift and fair delivery of justice hangs in the balance.
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.Skip to next paragraph
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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.
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.
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.
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.