Three months after Senate Democrats reformed the filibuster rules for executive and judicial nominees, Senate obstruction continues in new forms, and courts and litigants are paying the price. When the Senate returns from its holiday recess on Monday, February 24, it should move forward on confirming pending judicial nominees.
In a 2013 report, Federal Judicial Vacancies: The Trial Courts, the Brennan Center documented how unusually high vacancy levels coupled with unprecedented workloads are burdening federal trial courts like never before. The filibuster played a major role in creating this backlog, but to date, reforms to the filibuster rule have not ended Senate obstruction or addressed the urgent need to fill trial court vacancies. Since the filibuster rules were changed in November 2013, the number of district court vacancies has actually increased from 75 to 80, creating a 12 percent vacancy rate and the highest vacancy level since March 2011. Prior to President Obama taking office, the last time trial courts experienced 80 or more vacancies was in 1994, which saw high numbers of vacancies due in part to the creation of 74 new trial court judgeships in 1990.
The current level of trial court vacancies is substantially higher than what existed at the equivalent point in President Clinton’s second term (60) or President Bush’s second term (35).
Continued Senate Obstruction
In November 2013, Democrats changed the Senate’s filibuster rule to eliminate the 60-vote cloture requirement on executive and judicial nominees (other than Supreme Court justices). Senate Majority Leader Harry Reid argued that minority obstruction had “turned ‘advise and consent’ into ‘deny and obstruct.’” Yet despite filibuster reform, “deny and obstruct” continues to be the order of the day.
Departing from ordinary practice, Republican senators have refused to allow non-controversial judicial nominees to move forward through “unanimous consent” — a process by which the Senate can expedite proceedings by setting aside procedural rules if no Senator objects — effectively requiring a multi-day confirmation process for each nominee, including debate and multiple votes. At the same time, Democrats have failed to push forward with confirmations. Other nominees have been blocked through the “blue slip” process, by which home state senators can keep nominees from moving out of the judiciary committee.
Remarkably, not a single district court nominee has been confirmed since the Senate began its new session in January; 27 nominees are currently pending on the Senate floor and another 26 are pending in the Judiciary Committee, according to data from Alliance for Justice. On February 12, Senator Reid initiated the cloture process for four district court nominees prior to the start of a Senate recess. Debate and confirmation votes are expected to begin on the Senate’s return on February 24, although absent unanimous consent it could take several days before all four nominees are confirmed.
With 80 outstanding district court vacancies, along with four new vacancies anticipated by the end of March and an additional six new vacancies expected by the end of June, the pace of confirmations must dramatically increase in order to make a meaningful dent in the vacancy backlog.
Impact on the Trial Courts
Our courts — and the individuals and businesses that rely on them — have been unfortunate casualties of the ongoing partisan standoff in the Senate. District courts are the workhorses of the federal judicial system, resolving legal disputes, conducting civil and criminal trials, and overseeing cases from filing to termination. When they are not functioning efficiently, it reverberates throughout our entire judicial system.
As detailed in the Federal Judicial Vacancies report, recent years have seen an unprecedented pattern of high and sustained vacancies in the district courts: For the first time since 1992, the average number of district court vacancies has been greater than 60 for five straight years, from 2009-2013, with the trend now continuing into 2014. The 2014 average vacancy level currently sits at 78 vacancies (compared with an average of 70 vacancies in 2013). The following graph details the annual average number of district court vacancies since 2003, the last time new judgeships were created:
Annual Average District Court Vacancies 2003-2014
The vacancy gap between President Obama and President Bush’s terms in office illustrates this striking break with the past. This gap has grown even larger since the Federal Judicial Vacancies Report first documented the trend in July 2013.
Total Vacancies By Month in Office
Months in Office
These high vacancy levels, coupled with heavy caseloads, are also leaving trial court judges with unprecedented workloads. Counting both full-time active judges and part-time senior judges, the number of pending cases per sitting judge reached an all-time high in 2009 and was higher in 2012 than at any point from 1992-2007. (Data for 2013 calculation is not yet available.)
Growth in overall district court caseloads is one reason for this growing burden. The total number of pending felony and civil cases has grown by nearly 40 percent since 1992, and by more than 17 percent since 2003, the last time new district court judgeships were created. It reached an all-time high in 2009, followed by a slight decline in 2010-2012, due principally to the termination of tens of thousands of asbestos cases in the Eastern District of Pennsylvania in 2010-2012 and a decline in the filing of new asbestos cases in that district in 2012.
At the same time, the continued high vacancies since 2009 have significantly exacerbated the burden on sitting judges from these record caseloads. The following graph shows the yearly average of pending cases for each sitting district court judge, including those on senior status counted as half-judges. The red line estimates what the per-judge caseload would have been during 2009-2012 if all vacancies had been filled. The green line estimates per-judge caseload with all vacancies filled and the addition of 85 new judgeships, the number recommended by the Judicial Conference of the United States, the policy-making body of the federal courts.
Average Number of Pending Cases Per Sitting Judge, 1992-2012
Vacancies are also continuing to hurt those districts with the greatest need. One way to gauge the severity of the vacancy problem is to examine the number of “judicial emergencies” declared by the Administrative Office of the U.S. Courts. The Office relies upon a variety of measurements to declare an emergency, including the number of filed cases in each district, weighted by an estimate of the relative judge-time, on average, that different case types require. Since 2010, the district courts have been hobbled by an unprecedented number of judicial emergencies, as reflected in the following graph. (Because of changes in how judicial emergencies are calculated, comparative data is only available beginning in 2002.) The total number of judicial emergencies currently sits at 29 — the same number as existed in November 2013, when the filibuster rules were changed. (The 2014 average since January is 28.)
Annual Average Number of Vacancies Declared Judicial Emergencies, 2002-2014
Obstruction of non-controversial nominees is an abuse of the advise and consent process. Politics should not be permitted to hobble our courts. With courts facing unprecedented workloads, action is urgently required so that courts can effectively deliver justice despite heavy caseloads.
 For current vacancy data, see Administrative Office of the United States Courts, Article III Vacancies – As of 2/20/2014, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx (last visited Feb. 20, 2014). On November 21, 2013, the date the Senate changed the filibuster procedure, there were 75 vacancies. See Alicia Bannon, Updated Trial Court Vacancy Figures (Nov. 21, 2013), http://www.brennancenter.org/analysis/updated-federal-trial-court-vacancy-figures.
 See Administrative Office of the United States Courts, Archive of Judicial Vacancies, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/ArchiveOfJudicialVacancies.aspx/ (last visited Feb. 20, 2014) (monthly data on judicial vacancies).
 Alliance for Justice, Pending Judicial Nominees, http://www.afj.org/wp-content/uploads/2014/02/Pending-Judicial-Nominees-2.11.14.pdf (last visited Feb. 20, 2014).
 Administrative Office of the United States Courts, Future Vacancies in the Federal Judiciary, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/FutureJudicialVacancies.aspx (last visited Feb. 20, 2014).
 See Alicia Bannon, Federal Judicial Vacancies: The Trial Courts 2-3 (2013), available at http://www.brennancenter.org/sites/default/files/publications/Judicial%20Vacancies%20Report%20Final%20-%20web.pdf.
 See Administrative Office of the United States Courts, Archive of Judicial Vacancies, supra note 2. Calculation of annual averages on file with author. 2014 annual vacancy average based on monthly data through February 1, 2014.
 Id. Due to missing data, the November 2001 vacancy level is estimated using an average of the vacancies in October and December 2001.
 Calculated by dividing total pending cases by the total number of active and senior judges (counted as half judges). Data on the number of active and senior judges is from Administrative Office of the United States Courts, Judicial Business of the United States Courts (1997 through 2012), tbl. Status of Article III Judgeship Positions, available at http://www.uscourts.gov/Statistics/JudicialBusiness/archive.aspx. Data on pending cases is from Administrative Office of the United States Courts, Federal Court Management Statistics (1997 through 2012), available at http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics/FederalCourtManagementStatistics_Archive.aspx. Yearly data is as of September 30. Calculations are on file with author.
 See Administrative Office of the United States Courts, Federal Court Management Statistics (1997 through 2012), supra note 9; Administrative Office of the United States Courts, Judicial Business of the United States Courts: District Court Summary (2012), available at http://www.uscourts.gov/Statistics/JudicialBusiness/2012/us-district-courts.aspx; Administrative Office of the United States Courts, Judicial Business of the United States Courts Summary 17 (2011), available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/JudicialBusiness2011_Summary.pdf; Administrative Office of the United States Courts, Judicial Business of the United States Courts 21 (2010), available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2010/JudicialBusinespdfversion.pdf.
 For methodology in generating graph, see supra note 9.
 District court judicial emergencies are defined as any vacancy where weighted filings are in excess of 600 per judgeship, or any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship, or any court with more than one authorized judgeship and only one active judge. See Administrative Office of the United States Courts, Judicial Emergencies, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx (last visited Feb. 20, 2014).
 See Administrative Office of the United States Courts, Archive of Judicial Vacancies, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/ArchiveOfJudicialVacancies.aspx/ (last visited Feb. 20, 2014) (monthly data on judicial emergencies). Calculation of annual averages on file with author.