U.S. Attorney General Eric Holder published an op-ed in the Washington Post today, decrying the “confirmation crisis” that has seen the number of federal judicial vacancies double during President Obama’s time in office. “The federal judicial system that has been a rightful source of pride for the United States — the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law — is stressed to the breaking point,” Holder wrote. He noted that 259,000 civil cases and 75,000 criminal cases were filed in federal courts in 2009, enough to strain the court system even without almost one in eight judgeships sitting empty.
The problem is about to get worse. Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades. If the historic pace of Senate confirmations continues, one third of the federal judiciary will be vacant by 2020. If we stay on the pace that the Senate has set in the past two years — the slowest pace of confirmations in history — fully half the federal judiciary will be vacant by 2020.
As Justice Anthony Kennedy recently noted, the “rule of law is imperiled” if these important judicial vacancies remain unfilled. In 2005, Senate Republican leader Mitch McConnell called on Congress to return to the way the Senate operated for over 200 years, and give nominees who have majority support in the Senate an up-or-down floor vote.
I agree. It’s time to address the crisis in our courts. It’s time to confirm these judges.
Holder’s reference to Justice Kennedy came from an article in the Los Angeles Times about the increasingly politicized confirmation process, and how the battles over nominees has “spread like a virus” from the appeals courts to the district courts, according to one observer. Here’s the entire passage pertaining to Justice Kennedy:
Supreme Court Justice Anthony M. Kennedy, on hand for the 9th Circuit retreat, took note of the confirmation conflicts without assigning guilt to either political faction.
“It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”
Holder’s piece also mentions Albert Diaz, the North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, who was nominated by Obama in November, passed (unanimously) out of committee in January, and, as I noted last week, now holds the dubious distinction of having the longest active wait for a confirmation vote.
In other confirmation news, over on Slate.com, Dahlia Lithwick and Carl Tobias, a law professor at the University of Richmond and a friend of Sustained Outrage, took “one last crack at scaring your pants off with some strictly nonpartisan facts about the dangers of judicial vacancies” in their article “Vacant Stares: Why don’t Americans worry about how an understaffed federal bench is hazardous to their health?”
And the Alliance for Justice published a report yesterday that focused on judicial emergencies, noting that almost half (48) of the 103 current openings have been declared by the Administrative Office of the U.S. Courts. The 4th Circuit opening that Diaz has been nominated to is one of those emergencies, which means that West Virginia, as part of the 4th Circuit, is among the 30 states affected.
Judicial emergencies have increased by 140 percent during the Obama administration, the study noted. Here are some other findings:
• President Obama has nominated candidates to fill twenty-five of the forty-eight seats considered Judicial Emergencies.
•He has nominated candidates to seven of the ten circuit court emergencies and eighteen of the thirty-eight district court emergencies.
• Eleven of President Obama’s nominees who would fill judicial emergencies are currently awaiting confirmation votes on the Senate floor.
• Unfilled circuit court vacancies cause sitting circuit court judges to each handle an additional 52 to 276 filings per year, depending on the district, increasing already burdened judges’ workload by up to 30%.
• Unfilled district court vacancies cause sitting district court judges to each handle an additional 48 to 1,070 filings per year, depending on the district, increasing already burdened judges’ workload by up to 400%.
• Circuit court seats considered emergencies have been vacant for an average of 588 days.
• District court seats considered emergencies have been vacant for an average of 624 days.
• Nominees to circuit court seats considered emergencies have been pending for an average of 199 days.
• Nominees to district court seats considered emergencies have been pending for an average of 150 days.