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Time for Senate Compromise on Judicial Nominees

Democrats and Republicans recently reached an agreement to move forward on confirming certain stalled executive branch nominees. But before we begin celebrating, it is worth noting that judges were not part of the deal.

Published: July 26, 2013

Cross­pos­ted from Reuters.

All eyes were on the Senate last week as Demo­crats and Repub­lic­ans reached an agree­ment to move forward on confirm­ing certain stalled exec­ut­ive branch nomin­ees. This new spirit of comprom­ise was heral­ded, but before we begin celeb­rat­ing, it is worth noting that judges were not part of the deal.

Federal trial and appel­late courts have alarm­ingly high vacancy rates, each hover­ing at 10 percent. In the D.C. Circuit, which is often the final word on everything from envir­on­mental regu­la­tions to consumer protec­tion rules, three of 11 seats remain vacant. In the trial courts, which resolve the vast major­ity of federal cases, the aver­age number of vacan­cies has stayed above 60 for five straight years — the only time that this has happened in more than two decades. Nation­wide, there are currently 85 federal judge­ships that need to be filled.

One key reason vacancy levels are so high is obstruc­tion in the Senate. Senat­ors have used the fili­buster and other proced­ural mech­an­isms to slow down the confirm­a­tion of even noncon­tro­ver­sial nomin­ees, who were usually confirmed, even­tu­ally, with over­whelm­ing approval.

This obstruc­tion is partic­u­larly strik­ing in connec­tion with the federal trial courts, which have histor­ic­ally avoided the partisan wrangling that has long char­ac­ter­ized the confirm­a­tion of appel­late judges. For example, during Pres­id­ent Barack Obama’s first term, trial court nomin­ees had longer aver­age and median wait times from nomin­a­tion to confirm­a­tion than nomin­ees from any other recent admin­is­tra­tion, accord­ing to a study by the Congres­sional Research Service. Senat­ors have also delayed in submit­ting trial judge recom­mend­a­tions to the White House, slow­ing down the entire nomin­a­tion process.

The fili­buster was used on trial court nomin­ees to an unpre­ced­en­ted extent during Obama’s first term, accord­ing to research by Alli­ance for Justice, with Senate Major­ity Leader Harry Reid (D-Nev.) forced to file cloture 20 times. In contrast, Pres­id­ents Bill Clin­ton and George W. Bush each had cloture filed on a district court nominee only once during their entire pres­id­en­cies.

The result is that obstruc­tion has led to unusu­ally high levels of trial court vacan­cies, with courts and litig­ants paying the price.

Trial court dock­ets are reach­ing unsus­tain­able levels, accord­ing to Bren­nan Center research. The aver­age number of pending cases per sitting judge has jumped 20 percent since 1992, and was higher in 2012 than at any point from 1992–2007. Judi­cial emer­gen­cies, a meas­ure of vacan­cies in districts with the greatest need for judges, have been higher in 2010–2013 than at any other point since 2002.

These vacan­cies directly affect ordin­ary citizens and busi­nesses around the coun­try, who rely on the courts to resolve their disputes and protect their rights. For a small company in a contract dispute or a family targeted by consumer fraud, judi­cial delays often mean finan­cial uncer­tainty and unfilled plans, putting lives on hold as cases wind through the court system.

The Consti­tu­tion orders the Senate to provide “advice and consent” on judi­cial nomin­ees. When would-be judges are just another bargain­ing chip, however, senat­ors are not doing their job to provide over­sight of the nomin­a­tion process. Instead, they are creat­ing obstruc­tion for its own sake, and in the process are fail­ing to meet their oblig­a­tions to the pres­id­ent, the courts — and the Amer­ican people.