In his book The Pursuit of Justice, Bobby Kennedy said, "Justice delayed is democracy denied." The U.S. Senate has held up presidential appointments to the federal bench in historic numbers, delaying justice from being served by creating judicial emergencies all over the country, including here in Pennsylvania.
A federal judge receives more than 400 new cases each year. It should be no surprise that with 87 vacancies on the federal bench, there is now more than a two-year waiting period for civil matters to be heard. Chief Justice John G. Roberts Jr. acknowledges that "districts have been burdened with extraordinary caseloads."
These critical positions remain open because of partisan efforts to obstruct the confirmation of judicial nominees, as well as others. While judicial vacancies declined by 65 percent and 34 percent during the first terms of Presidents Bill Clinton and George W. Bush, vacancies actually rose by 51 percent during President Obama’s first term. Appointments by Obama have taken more than a year to be confirmed by the Senate, averaging 387 days.
The American judicial system was founded on the principle that everyone should be able to have their day in court, but today, it is only if they are willing to wait. According to the Administrative Office of the U.S. Courts on behalf of the federal judiciary, 30 of the 87 vacancies are considered "judicial emergencies." Here, in Pennsylvania, six vacancies remain in the Eastern District of Pennsylvania and one vacancy remains in the U.S. Court of Appeals for the Third Circuit.
Republican senators tried, with success, to keep these vacancies open under Obama for candidates from their own party, hoping that there would be a different outcome in the presidential election. The framers of the Constitution did not intend this and the judicial nomination process should not work this way. For district court appointments, senators propose candidates to the president. Then, if the president deems a candidate fit, the president submits the nomination to the Senate and the nominee is forwarded to the Senate Judiciary Committee for a hearing. If a majority of Judiciary Committee members votes to support a nominee, the nominee is reported to the full Senate for a floor vote, where it takes a majority to confirm an appointment.
Currently, there are 34 pending nominees for the courts of appeals, district courts and the U.S. Court of International Trade. Prior to the election, many of these nominees made it through the Senate Judiciary Committee but were stalled on the Senate floor by Republican blocks.
Now, early in Obama’s second term, there appears to be hope for a break in the partisan fever. Faced with four more years under a Democratic president, Republican senators seem to be willing to compromise for the sake of the American people. Republican Senator John McCain, who strongly criticized former Republican Senator Chuck Hagel during his nomination hearing to become the next Secretary of Defense, said he would oppose a filibuster against Hagel. On the judicial nominee front, Republican Senator Tom Coburn said that with Obama’s victory, the nominations of federal Magistrate Judge Robert E. Bacharach and attorney John E. Dowdell should quickly move through the Senate.
Ellen Meriwether, the head of the Philadelphia Bar Association’s federal courts committee, agreed that "the winds of compromise seem to be blowing over Washington again." She also added that "hopefully, they will blow this way." The possibility of compromise comes at a good time for the Eastern District of Pennsylvania. On November 27, Obama nominated Philadelphia County Judge Nitza I. Quiñones Alejandro, federal Magistrate Judge Luis Felipe Restrepo, and Berks County Judge Jeffrey L. Schmehl to fill three of the six vacancies in the Eastern District. Hopefully, these nominations will pass through the Senate and help ease some of the Eastern District’s caseload.
As our country’s leaders are beginning to realize, politics should take a backseat to the needs of the American people. Both parties need and deserve a federal court system that can keep up with the many cases being filed. Now is the time for the partisan fever to break in Washington. Unless the Senate acts, Bobby Kennedy’s words will remain true. Justice delayed is democracy denied.
Patrick Murphy is a litigation partner at the Philadelphia office of Fox Rothschild and a former U.S. congressman. Melissa Dolin is a first-year litigation associate in the Philadelphia office of the firm.