Time for Senate compromise on judicial nominees

July 26, 2013

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.


PHOTO: President Barack Obama at the Rose Garden of the White House announces his three nominees to fill vacancies on the U.S. Court of Appeals for the District of Columbia in Washington June 4, 2013. The nominees will be attorney Patricia Ann Millett (R), Georgetown law professor Cornelia Pillard (behind Obama) and U.S. District Court Judge Robert Leon Wilkins (L). REUTERS/Kevin Lamarque


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It’s interesting that many of those who claim to support the American democratic process and the Constitution indicate by their actions that they actually don’t. It’s so sad that so many of these anti-Americans are Members of Congress. Of course, they are Members of the One Percenters Club, card-carrying members of the Plutocracy, the primary corrupters of the American Way.

Posted by ptiffany | Report as abusive

If judges would start throwing out the meritless cases put before them they would find themselves actually overstaffed.

Posted by JRTerrance | Report as abusive

Seems to me that the office of the PotUS has sole discretion in filling these nominations. What compromise is there when one side does not respect this convention? Obama isn’t exactly Mickey Mantle but maybe he would’ve done a better job with the tiniest hint of co-operation and fellowship from the opposition.

Posted by CDN_Rebel | Report as abusive

The article fails to mention how said nominees don’t get a debate or discussion but just told to pass it. Many of these judges to be have no experience with what they are expected to preside over and often just putting their to give a heavy one sided political view rather then a legal view from those who try and keep personal political beliefs out of it and keep parties out of it. With Obama’s record at the very start of his Admin he quickly lost any trust and the other side started assuming even those looking non controversial had a secret hidden.

Dems have also done this same thing many times as well though. In the past its been Dems doing it far more then Reps. Now Reps do as they simply can’t trust this admin or Harry Reid. But maybe if they replaced Reid with someone a bit more open minded it would help the process.

Posted by Syanis | Report as abusive

Doesn’t it matter that these judges are not just a current admin Judge to be but would be their for 20, 30, 40 years often until death? Its hard to trust an admin with a history of appointing based on political agenda to the courts instead of legal knowledge and fair presiding.

Posted by Syanis | Report as abusive

maybe the obstruction is a good thing, maybe the candidates being put up are left(or right) leaning political shills who are likely to ruin our country with poor rulings not based on facts or law. Just because congress doesn’t pass a law or approve a nomination does not mean they are not doing their job.

Posted by zotdoc | Report as abusive

um, maybe not.

judgeships have always been politically based: Republican administrations rarely appoint Democratic judges and vice versa. and poor rulings not based on fact or law are reversed on appeal, except at SCOTUS.

the point to be gained out of all this is that Republicans are obstructing THIS administration to an extent not seen before, even at district court level.

My guess is that this is part of an overall strategy to obstruct as much as possible any liberal (=Democratic) judge from being appointed, in order to decrease the pool of liberal judges from which judges for the courts of appeals and the SCOTUS can be nominated. And, of course, decrease the number of ‘liberal’ rulings at any level.

this is a really long term strategy, which I am surprised the Republican Party has been disciplined enough to carry out, but I suspect there are others behind the party who have provided the long term backbone. And the Dems have not been alert enough or taken a long enough view to realize what plans Republicans have for the third branch of government, which is not elected, but arguably as or more powerful than the other two branches (witness the results of the ruling in Florida, which took the election away from Gore and gave it to Bush).

Posted by bozozozo | Report as abusive

You said “In the past its been Dems doing it far more then Reps.”
Your opinions are based on a complete falsehood. As the article and many others clearly indicate the degree to which the Senate has blocked this President’s nominees is without precedent.

Posted by QuietThinker | Report as abusive

@QuietThinker, @bozozozozo
In March 2002, the Oxford English Dictionary added an entry for the verb bork as U.S. political slang, with this definition: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”[35]
I would say Biden and Kennedy hit personal lows in their conduct and in their personal damage to the nation as a whole but that would be another whole conversation that could take a really long time because there is so much to consider.

Posted by DJW77 | Report as abusive

Forgot to add the reference to the above. The “bork” passage was copied from Wikipedia.

Posted by DJW77 | Report as abusive