The Vacancy Crisis

This summer wasn't easy for the Delaware Federal District Court. With one long-standing vacancy and an impending retirement, the four-seat court was hugely backlogged. "Because of the Speedy Trial Act," says Caroline Fredrickson of the American Constitution Society, "they've had to take their whole criminal caseload and outsource it to other federal courts." It was a drastic move, but the only way Delaware could have handled its growing load of civil cases -- judicial business that concerns people who have lost jobs, homes, and livelihoods and need the court's assistance. Thanks to this "fundamental breakdown in the judicial confirmation process," she says, "people are waiting and waiting, and yet there is no justice."

This isn't an isolated problem. Lower courts in the United States have more than 100 vacancies, with 20 empty seats on the U.S. Circuit Courts of Appeals and 84 on the District Courts. According to the Alliance for Justice, 22 state courts have openings that are classified as "judicial emergencies." These are seats that have been vacant for more than 18 months, with each remaining judge responsible for hundreds more filings. Moreover, since President Barack Obama entered office last year, the number of emergencies has more than doubled -- with disastrous consequences for the legal system. On the U.S. District Court for the Central District of Illinois, for example, three vacancies have left just one remaining judge responsible for an additional 1,170 filings. With fewer judges available to hear a growing number of cases, justice is delayed -- and often denied -- for thousands of Americans.

What happened over the last two years to throw the federal court system into crisis? Part of the problem is politics. Traditionally, the confirmation process has been an area of legislative deference to the president, with the Senate accepting most of the president's choices for the federal judiciary. In the current Congress, however, Republicans have turned this on its head, refusing to confirm the president's nominees as a matter of course. GOP senators have held up nearly every vote of consequence through filibusters, holds, and other parliamentary maneuvers. Indeed, the 111th Congress is on track to top the 110th Congress (which also had a Republican minority) for the highest number of cloture votes -- which includes judicial confirmation votes. In their parliamentary war against the Democratic majority, Republicans have turned the judicial confirmation process into another battleground.

The numbers bear this out. According to a recent report from the Center for American Progress, the Senate has confirmed a scant 42.8 percent of President Obama's judicial nominees. By contrast, the Senate confirmed 79.3 percent of George H.W. Bush's nominees, 84 percent of Bill Clinton's, and 86.8 percent of George W. Bush's. Indeed, the Alliance for Justice found that this holds true even when you account for the fact that Obama has only served two years; by the end of his first year in office, Obama had fewer nominees confirmed than any of the last five presidents at that point in their presidency. Only a handful of the 47 lower-court nominees awaiting confirmation have come up for a vote on the Senate floor, while the majority have been held up for months by holds and filibusters. For example, Amy Totenberg -- nominated to fill a 22-month-old vacancy on the U.S. District Court of Northern Georgia -- has been awaiting a confirmation hearing since March. Granted, Senate Majority Leader Harry Reid hasn't put much emphasis on confirming judges. Still, even Reid's reticence is a product of the relentless obstructionism exercised by the Republican minority; floor time for judicial confirmations is hard to find when you need that time to hold cloture votes and break anonymous holds.

Senate Republicans, however, aren't the only ones to blame for the vacancy crisis. The Obama administration has displayed a strange lack of urgency when it comes to nominating people to the federal bench. In a report released last year, the Alliance for Justice found a huge discrepancy in nomination rates between Obama and Bush; by the end of his first year in office, Bush had offered 23 nominations to fill 34 vacancies on the Circuit Courts of Appeals, and 30 nominations to fill 81 vacancies on the District Courts. By contrast, in his first year, Obama only offered eight nominations to fill 21 vacancies on the Circuit Courts, and nine nominations to fill 72 vacancies on the District Courts.

It's not entirely clear why Obama has been so slow to nominate judges, but there are a few possibilities. For one, this administration has taken a different approach than its predecessor; Bush was never keen on conferring with senators -- particularly Democratic ones -- before submitting nominees. In a particularly high-profile case, then-Minority Leader Harry Reid released a statement asking President Bush to consult the Senate before offering his choices to fill a vacancy on the Supreme Court. Obama, by contrast, has taken a more traditional approach, working with Republican senators to choose acceptable nominees for their respective states. Of course, this hasn't made confirmation any easier -- Republicans still filibuster his choices, but Obama continues to consult them.

Obama has also reinstated the practice of soliciting evaluations from the American Bar Association's Standing Committee on the Federal Judiciary, which has weighed in on candidates for the federal bench since 1948. The process is rigorous but slow moving; it can involve at least 40 interviews per nominee. To much criticism from the mainstream legal community, Bush announced at the beginning of his presidency that he would no longer provide the ABA with names of candidates for appointment to federal judgeships prior to their nomination, thus eliminating another barrier to speedy nominations and broadening the pool of potential nominees. Whereas Obama might decline to submit poorly rated nominees to Congress for confirmation, Bush simply didn't care.

The Obama administration's lack of concern about the vacancy crisis also might owe to the fact that the left hasn't put much emphasis on preparing a ready group of potential nominees. On the other side, conservatives have invested a huge amount of time and effort in cultivating a large group of potential federal judges. Bush drew many of his judicial nominees -- including his first choice for the Supreme Court, John Roberts -- from the conservative Federalist Society. And while the Federalist Society has something of a liberal counterpart in the American Constitution Society, progressives lack the conservative zeal for shaping the federal judiciary and as such, haven't put much pressure on the administration.

This problem extends beyond the judiciary. The Obama administration has been incredibly slow on a whole host of executive-branch nominees. As former auto-industry czar Steve Rattner describes in his new book, the administration has an intense, time-consuming vetting process that is as frustrating as it is invasive. Nominees -- who must consent to probes of their personal lives, financial records, and work history -- spend thousands of dollars in legal fees to ensure safe passage through vetting, away from angry partisans and ambitious senators. Obama hasn't even bothered to fill vacancies on the Federal Reserve Board, even as the economy struggles to right itself after a disastrous recession. His neglect of judicial vacancies seems to be part of a pattern and suggests the possibility that the administration just isn't that concerned with filling the federal bench and staffing the executive branch.

The consequences of an understaffed federal judiciary are hard to overstate. Not only are courts across the country struggling to handle growing dockets, some have stopped hearing civil cases altogether. The problem is particularly acute in border states -- thanks to their large number of immigrants -- and in places like the Eastern District of California, where long-standing vacancies and a large population have left the court overworked. A vacant court also encourages even further politicization of the confirmation process. With Obama increasingly unpopular, Republicans will want to "reserve" new and existing vacancies for when they control the White House. In the 112th Congress, the GOP will have every incentive to shut down the confirmation process for the duration of Obama's first term.

The biggest losers in this game are the American people. For the last decade, a federal judiciary dominated by conservatives has mostly served to stack the deck in favor of wealthy and privileged interests. A recent study done by the Constitutional Accountability Center found that a cohesive five-judge majority on the Supreme Court has produced victories for the Chamber of Commerce in 68 percent of cases from early 2006 to late 2009. Doug Kendall, president of the Center, sees the status quo as dangerous for liberals and their priorities. "Over the next several years, health-care reform and every major initiative of the Obama administration will reach a federal judiciary dominated by conservative appointees," he says. The judicial vacancy crisis could ultimately endanger Obama's most important accomplishments.

Without new nominees, there isn't much opportunity for turning the tide. "It's important for the judiciary to have [ideologically] balanced courts," says Nan Aron of the Alliance for Justice. "On most of the Circuit Courts, though, there is a predominance of Republican appointees with similar values and views, but no counterweight." Worse, without a new set of younger judges, Democrats will miss out on a chance to build a liberal farm team for the Supreme Court. President Bush was able to pick from a deep bench of conservative appointees who made their way to the judiciary in earlier Republican administrations. Unless Obama and progressives act now to recruit new judges, future Democratic presidents won't have that luxury.

The federal judiciary is one of the few areas where the president can create conditions for broad and long-lasting change. Any president who gains the opportunity to shape the federal judiciary should use it to its fullest. Yes, Obama has had to contend with a hyper-partisan, rejectionist Republican Party, but his neglect of the judicial nomination process is one of the biggest unforced errors of his presidency.

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