Congress is again causing problems for the Federal Judiciary. The crisis is a lack of judicial resources due to the fact that Congress refuses to confirm Federal judges.
We know that there are currently 3 vacancies on the 12 member Federal Circuit: that’s 25% of the court’s membership. The oldest vacancy was Judge Schall’s retirement to senior status last October. Judge O’Malley was nominated in March and finally passed the Judiciary Committee in September (unanimously). Will she get a vote on the floor in a lame duck Senate session? The other 2 vacancies are only about 4 and 5 months, respectively. Edward DuMont was nominated in April. He still hasn’t even gotten a hearing before the Judiciary Committee yet.
But the Federal Circuit is one court, right? Things must be better on the other courts. Let’s take a look.
There are currently 2 vacancies on the DC Circuit out of its 11 judge membership. Justice John Roberts’s former seat has been vacant since 2005 after Senate Democrats blocked President Bush’s nomination of Peter Keisler. The other seat has been vacant since 2008. This one can’t be completely blamed on the Senate, as President Obama just made his first nomination to this court at the end of September.
The Second Circuit has a membership of 13 judges, but currently has 3 seats that have been vacant for over a year. President Obama made nominations in February, March, and May, respectively to fill these seats.
The February nominee was confirmed in June by the Judiciary Committee on an 11-7 party line vote, but the nomination was returned to President Obama without consideration by the entire Senate. The president resubmitted the nomination last month.
The March nominee received approval from the Judiciary Committee in May. He is still awaiting consideration by the entire Senate. The May nominee had a hearing last month, but has yet to be voted on by the committee.
Two of the 15 seats on the Fourth Circuit are currently vacant. The oldest vacancy dates to 2007 after Democrats refused to even conduct a hearing on President Bush’s nominee. The other seat has been vacant since July 2009.
The president’s November 2009 nominee to the oldest vacancy was unanimously approved by the Senate Judiciary Committee in January. Yet, no vote by the full Senate has taken place in the 9 succeeding months.
The Fifth Circuit has 2 vacant seats out of 17. The oldest has been vacant since August 2009. President Obama didn’t get around to a nomination until June. The Judiciary Committee did conduct a hearing last month, but has not yet voted on the nomination.
One of the 11 seats on the Seventh Circuit is vacant. The vacancy occurred in January; President Obama nominated a replacement in July. No action has been taken on the nominee in the last 3 months.
The largest circuit with 29 seats, currently has (only) 4 vacancies. One has been vacant since 2004(?), the others since January 2009 and February and June 2010, respectively. No nomination has been made for the seat vacated in 2004, as Obama has instead made nominations for the next two longest vacancies in February and March of this year. It appears that the 2004 seat may be designated as an Idaho seat for which a replacement has not been found(?).
The February nominee is a fairly controversial professor at the University of California Law School. The Judiciary Committee has approved his nomination twice, largely along party lines, and the entire Senate sent the nomination back to the president once. The most recent committee approval was in September. Republicans have vowed to fight this nomination.
The March nominee was approved by the committee in August, with no full Senate action in the last 3 months.
The Tenth Circuit 12 judgeships with 2 vacancies. The oldest vacancy dates to August 2009, with the other being in June 2010. President Obama has sent one nominee to the Senate in March. The Judiciary Committee approved the nomination in June. The entire Senate has not yet acted on the nomination.
The Eleventh Circuit has had one empty seat, out of 12, since August. No nomination has been submitted to fill this seat.
In total, there are 179 authorized appellate court judgeships, with 20 of those being vacant. President Obama has nominated 13 individuals to fill those seats. The overall vacancy rate of 11% is not as bad as the 25% rate on the Federal Circuit. And the Federal Circuit nominees do not appear to be controversial.
At the trial court level, things are worse. In district courts, there are currently 104 vacancies out of 679 authorized judgeships, a vacancy rate of 15.3%. President Obama has only submitted 47 nominations to fill the vacancies thus far, many of them very early in 2010. Yet, the Senate has not acted on them.
As Congress continues to create more Federal causes of action and more cases that make their way to Federal Court, the Senate is embroiled in partisan squabbling to prevent even non-controversial nominees from getting confirmation votes. The resulting backlogs in Federal courts mean that, in many cases, justice is substantially delayed.
How is this allowed to happen? In general, because the media pays very little or no attention to judicial nominations outside of the Supreme Court. Nominees to the High Court are not allowed to languish because of the potential media backlash.
Yet, one asks why Senators do not use the media for other judicial nominees. Under Senate rules, a single senator, sometimes anonymously, can request a secret hold on a nominee. One does not understand what Judiciary Committee Chairman Patrick Leahy (D-VT) or Majority Leader Harry Reid (D-NV) gain from not vigorously advancing President Obama’s nominees in the Senate, especially given that they will probably have significantly fewer seats after next week’s election.
If the fault lies on the other side of the aisle, such as with the committee’s Ranking Member Jeff Sessions (R-AL) or Minority Leader Mitch McConnell (R-KY), it would seem that Sen. Leahy or Sen. Reid could use the media to place pressure on their colleague’s in the minority to allow up-or-down votes.
In the meantime, the Federal Judiciary, including the Federal Circuit, operates at a substantial handicap.