Sustained Outrage

Judicial vacancies and the lame duck session

There’s been a growing chorus of voices calling upon the U.S. Senate to take action on the more than 100 vacancies in the federal judiciary during the lame duck session. In terms of knowing how the federal justice system works, some of these folks are pretty credible as experts.

On Thursday, former judges Abner J. Mikva (a Carter appointee) and Timothy K. Lewis (a Bush I appointee) published a joint opinion piece on After noting that almost almost one out of every eight federal judgeships is currently vacant, with that number likely to increase due to upcoming retirements, the jurists wrote:

As federal judges appointed by presidents from different parties, we urge the Senate to end the excessive politicization of the confirmation process that is creating these delays.

This obstruction and the way it undermines our democratic process would be outrageous at any time. But it is especially shameful now, because many of these qualified nominees received bipartisan support when nominated and were then approved by the Senate Judiciary Committee with broad support. Yet they have waited more than a year to be confirmed because the Senate never put their nomination to a vote.

Instead of confirming these nominees, some senators have used secret holds and filibusters to block the votes, leaving nominees in limbo for a year or more and undermining the credibility of our judiciary. Fewer nominees have been confirmed during the Obama administration than at any time since President Richard Nixon was in office.

These tactics are, as one senator noted, “delay for delay’s sake.” They are creating an unprecedented shortfall of judicial confirmations and, ultimately, a shortage of judges available to hear cases. For many Americans, this means justice is likely to be unnecessarily delayed — and often denied.

The op-ed continues:

With the Senate now back for the lame-duck session, political pressure on nominations may not be so intense. This is the time for the Senate to return to an effective process for confirming judges — one that can eliminate the appearance of excessive partisanship and apply to both Democratic and Republican administrations.

Only in this way can we begin to restore the public’s faith in the integrity of our judiciary, a crucial element of our Constitution’s delicate system of checks and balances and fundamental to our democratic system of government.

On Monday, six members of the U.S. Court of Appeals for the 9th Circuit, including Chief Judge Alex Kozinski, (as well as chief judges in all of the Circuit’s 13 U.S. Districts, plus the chief judge of the District of Guam) sent a letter to Senate Majority Leader Harry Reid (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.), Judiciary Chairman Patrick Leahy (D-Vt.) and Ranking Member Jeff Sessions (R-Ala.).

It’s a short letter, so here it is in its entirety:


We write on behalf of the courts of the Ninth Circuit. As you know, the Ninth Circuit is by far the largest federal circuit in the country, encompassing the 9 western states, plus the territory of Guam and the Commonwealth of the Northern Mariana Islands. Approximately one fifth of the population of the United States lives within the borders of the Ninth Circuit. Our case-load reflects the diversity of our territory and the people that inhabit it and is heavily impacted by increased immigration enforcement, drug interdiction activities, prison litigation, bankruptcy and environmental cases–to name just a few of the most active areas.

In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges. Our need in that regard has been amply documented (See attached March 2009 Judicial Conference Recommendations for Additional Judgeships). Courts cannot do their work if authorized judicial positions remain vacant.

While we could certainly use more judges, and hope that Congress will soon approve the additional judgeships requested by the Judicial Conference, we would be greatly assisted if our judicial vacancies–some of which have been open for several years and declared “judicial emergencies”–were to be filled promptly. We respectfully request that the Senate act on judicial nominees without delay.

So now it’s not just court-watchers, academics and talking heads urging the Senate to take action from the sidelines. It’s current and former judges essentially begging the upper legislative body to send them some help, because the empty seats on the bench are eroding the quality of justice in our courts.

On Wednesday, the Alliance for Justice published another study that concludes that Obama’s nominees are getting confirmed at a much slower rate than his immediate predecessors. Unlike Presidents Clinton and Bush II, who saw the number of vacancies increase during their first year more than offset by significant decreases in their second year, Obama has seen the number of vacancies continue to grow.

Obama inherited 55 vacancies. By January 2010, that number had swelled to 93, and has since grown to 106 as of today.

Bush II inherited 80 vacancies, and that number grew until October 2001, when it reached 110. By January 2003, there were only 59 vacancies.

Clinton inherited 107 vacancies, and that increased until November 1993, when it hit 127. By January 1995, it had gone down to 68.

So, for Obama to achieve a similar level of success — i.e., fewer vacancies in his third January in office than he came in with — the Senate would have to confirm at least 52 judges before Feb. 1.

The report concludes:

Given the crisis in the courts, recent history sets a clear precedent for confirming judges during a lame duck session of Congress. In 2002, the closely divided lame-duck Senate confirmed 20 of President Bush’s judges – 3 for Courts of Appeals and 17 for District Courts. It did so on a voice vote for 19 of the nominees, with only one judge submitted for a roll-call vote. The example of 2002 demonstrates that a responsible Congress, willing to fulfill its constitutional duties to fully staff the courts, can act even in the context of a partisan, lame-duck session and begin reducing the high number of judicial vacancies and emergencies that are plaguing our judiciary and threatening justice for all Americans.

President Obama did nominate an additional six candidates for the federal bench this week, which is a step in the right direction. But at its executive business meeting on Thursday, the Judiciary Committee held over all 12 of the judicial nominees up for Committee votes, which is not.