Citizens lose when partisans play politics with the federal judiciary

Business is booming in the federal courts. According to the annual report of the director of the United States Courts out this month, the federal judiciary saw a 6 percent increase in civil cases and a 13 percent increase in the number of criminal defendants last year. Collectively, the federal district courts, which are the trial courts of our nation, added more than 370,000 new matters to their dockets last year. Behind each new case are real people who hope for a fair and efficient resolution to their dispute.

Unfortunately, the boom comes at a time when the courts are severely understaffed. Federal law entitles the courts to 677 district judges to handle the workload. But out of those are more than 120 vacancies, and another dozen or so vacancies are expected soon. As a result, nearly one in five federal district courtrooms sits dark and unused. Private sector services would address this by adding qualified employees to help meet customer demand. But the courts have no such luxury because they are constitutionally unable to add or replace judges on their own initiative.

{mosads}Rather, the federal courts must rely entirely on the other branches of government to provide their most essential resource. If the president does not put forth judicial nominees, or if the Senate does not confirm them, the courts have no choice but to forge ahead with whatever judges they have. Unfortunately, both the White House and Congress have been derelict in their duties to the courts. The president has peppered his list of judicial nominees with some who plainly lack the necessary qualifications, including a trial court nominee with no trial experience. 

For their part, Senate Democrats have chosen to focus on everything but relevant qualifications, instead turning judicial confirmation hearings into commercials for their own progressive bona fides. Both Kamala Harris and Mazie Hirono interrogated nominee Brian Buescher about his membership in the Knights of Columbus, a Catholic service organization. Cory Booker demanded to know the sexual orientation of staff members of nominee Neomi Rao, while Patrick Leahy grilled Rao about opinions she expressed as an undergraduate a quarter century earlier. Even though Rao was an appellate court nominee, it is not hard to anticipate the same line of political questioning being directed to a candidate for the trial bench.

These partisan inquisitions are embarrassing and wholly unnecessary. The vast majority of federal cases do not raise political questions. Whether a contract was breached or a patent infringed is neither a matter of liberal or conservative ideology nor one of broad significance. By contrast, the ongoing vacancies crisis in the courts is a matter of national concern. For private litigants, a shortage of judges means longer waits for trials and orders, and increased financial and emotional cost on clients resulting from the delays. For the general public, fewer judges means a justice system that is less efficient, less transparent, and even less trustworthy.

Just imagine if other important civic institutions such as police and fire services, churches and synagogues, and schools and hospitals had to rely entirely on politicians to meet their staffing needs. Imagine if the career of a promising doctor, teacher, or firefighter depended not on her relevant skills and experience, but whether she belonged to the right kind of civic organization or took the wrong stand on an issue in college. What kind of applicants would seek those jobs and run that gauntlet? What quality of employee would it ultimately produce? How long could people endure all the resulting delays and inefficiencies before it became too unbearable?

Fortunately, our politicians do not get to choose our police, pastors, or pediatricians. However, they do get to choose federal judges, and they should treat that tremendous responsibility with the seriousness it truly deserves. There are currently more than 60 nominees for the federal district courts pending before Congress. Those men and women deserve a fair hearing and a timely vote from senators, for their sake and for ours.

Jordan Singer is law professor and concentration adviser at New England Law in Boston where he focuses on civil procedure and judicial selection. He writes about the federal courts at The Interdependent Third Branch.