Senate goes on recess while judicial nominees wait

Unless the Senate acts before beginning its scheduled August recess later this week, ten judicial nominees who could fill vacancies on the nation’s Federal courts will remain in limbo, stalling the administration of justice for average citizens, businesses, and municipalities.

These nominees have had hearings before the Senate Judiciary Committee and were passed unanimously by both parties.   They have languished on the Senate floor for extended periods of time—in the case of Jeanne Davidson of the Court of International Trade, since early February of this year.  The Senate could pass each of these nominees before heading off for its August break, lessening the vacancy rate by 15 percent.

{mosads}However, there is little reason for optimism on this front.  The 114th Senate has been notably unproductive in filling vacancies on the nation’s courts.  The number of vacancies on the district and appellate benches has risen from 45 at the start of the year to 63 now, with those listed as “judicial emergencies” by the Administrative Office of the Courts having more than doubled, from 12 to 28 at present. 

The current slowdown has real-life consequences for average Americans.  The backlog of cases in many districts has reached a crisis level, where semi-retired “senior” judges are carrying caseloads as heavy as their colleagues who sit as active judges.  Plaintiffs and defendants alike face long delays to resolving disputes that impact upon the economic health and social welfare of a free society.

The nation’s circuit courts have borne the brunt of the slowdown.  Only one circuit court nominee has been approved by the Senate so far this year—Kara Fernandez Stoll, who was confirmed on July 7 to the relatively non-controversial Federal Circuit Court of Appeals, which handles appeals on cases relating to patent laws and international trade.  Meanwhile, nine other vacancies remain open, including five emergency vacancies.

The problem is especially acute at the district court level, where 54 of the 63 current vacancies reside.  Nominations to the nation’s trial courts have traditionally received less opposition from either party in the Senate, because it is assumed that any bad decision there can be reversed by the two higher courts above them (the appellate courts or the Supreme Court).   Yet nine of the ten nominees awaiting a vote on the Senate floor are for district court vacancies, including four who would immediately fill emergency vacancies.

Senate Republicans are also obstructing President Obama from filling the courts by refusing to participate in the pre-nomination process.  Presidents traditionally defer to home-state Senators for suggestions of qualified individuals who may serve on the courts in which the vacancy occurs.  However, only 17 of the 63 current vacancies have nominees to fill them.  Over half of the seats that are vacant and have no nominee are in states with two Republican Senators.  Seven of those vacancies are in the state of Texas, home to Sens. John Cornyn (R) and Ted Cruz (R), who are a former Texas Supreme Court Justice and a Harvard Law School graduate, respectively.  While the senators may win points with anti-Obama donors and voters by not cooperating in the nomination process, both businesses and rank-and-file citizens face unacceptable and unnecessary delays in resolving cases under Federal jurisdiction.

To fill more of the vacancies, Obama could concentrate his efforts on naming nominees in jurisdictions where there are either two Democratic Senators or where no Senators have jurisdiction (such as the aforementioned Court of International Trade, which has three vacancies besides the one that Davidson has been nominated to fill).  At present, this would add seven more nominees to those already in the confirmation process.  But Obama is aware that simply naming more nominees will not induce the Senate to move with greater dispatch and more quickly confirm more new judges. 

To ensure the prompt administration of justice, the Senate must reverse course and bring Obama’s nominees to a vote quickly and on a regular basis, starting with the ten nominees currently awaiting a vote.  With another three retirements occurring during the Senate’s recess, the upper house can ensure that justice is no longer denied by delay.

Lodato is a lecturer at the University of Chicago.