Six Vacancies, Zero Nominations: Why Empty Seats on Pennsylvania's Federal Courts Are Lingering

A federal court in Pennsylvania currently has more judicial vacancies without a pending nomination than any other district in the country. And one of those vacancies has been lingering for more than three years.

Now, solidly into the second year of President Joe Biden’s presidency, an election is looming that may jeopardize Democrats’ filibuster-proof majority in the Senate, potentially causing additional complications and delays for the president’s judicial nominees. But attorneys and court watchers say they are still hopeful the process is moving smoothly behind the scenes and that the vacancies will be filled before any potential problems for the courts arise.

As it stands, Pennsylvania has six judicial vacancies, five of which are in the U.S. District Court for the Eastern District of Pennsylvania, with the other pending in the Middle District.

So far, no nominees have been proposed for any of the district courts.

In Pennsylvania, the process for filling a judicial vacancy is a clandestine affair. According to court watchers and some formerly involved in the process, the initial step typically involves bipartisan bodies of local advisers working at the behest of the state’s senators who do the initial vetting and then pass along those insights to the lawmakers. While any formal nominations must come from the president, according to observers, having this initial local input is key to ensuring a smooth nomination and confirmation process, without worries that a home-state senator will voice opposition by withholding a so-called “blue slip.”

While court watchers say they are confident that process is underway, some acknowledge that Pennsylvania appears to be in an unusual situation.

“I cannot remember a time when there were five openings in one of the districts,” Kline & Specter attorney Thomas Kline, who formerly headed the senators’ advisory body for Eastern District nominees, said. “But these deals have been made in the hardest and the easiest of times.”

Underpinning their optimism, court watchers noted that U.S. Sens. Bob Casey, D-Pennsylvania, and Pat Toomey, R-Pennsylvania, have a long history of working together to select successful nominees so that court vacancies don’t persist.

But, over the past few years, the federal judiciary has increasingly found itself at the center of pitched political battles like never before, and both the Biden and Trump administrations have also placed the judiciary front and center to their campaign promises and policy agendas. And with Toomey looking to leave his post at the end of the year, some court watchers are becoming wary.

Specifically, some said they worry that Biden’s stated agenda of improving the racial, gender and professional diversity of the federal judiciary might clash with the makeup of candidates Toomey is likely to support. There has been an increase in public defenders and civil rights attorneys being nominated to the bench, and Biden has followed through on his promise to nominate the first Black woman to the U.S. Supreme Court with his recent nomination of Circuit Judge Ketanji Brown Jackson.

So far, Toomey has voiced some opposition to Biden’s priorities, especially on the issue of racial diversity, including recently telling Bloomberg that Biden “has elevated race and sex as the most important criteria, and I wish he wouldn’t disqualify everybody in America who doesn’t meet that criteria.”

Kadida Kenner of The New Pennsylvania Project, a nonprofit pushing to expand voter registration for underrepresented communities, said she is hopeful the pragmatic relationship between Casey and Toomey will continue. But she also noted Toomey’s ultimately successful efforts in 2016 to block former President Barack Obama’s nomination of Rebecca Ross Haywood, who would have become the first Black woman on the U.S. Court of Appeals for the Third Circuit.

In light of that history, Kenner said she and other grassroots organizations ”will be keeping an eye on Senator Toomey to make sure he honors his commitment to fill these vacancies with open-minded Constitutionalists, so we can all live in a representative democracy.”

In January, Biden nominated Arianna Freeman, a top lawyer in the Eastern District’s federal defenders office, to fill a Third Circuit vacancy. If confirmed she will become the first Black woman on that court. While Casey has offered support for Freeman, some court watchers took note that Toomey did not issue a press release supporting the nomination. According to The Philadelphia Inquirer, an aide for Toomey said his office was consulted, “but our input was rejected.”

“In this moment I’m hopeful their relationship continues, but what I do have concern about is this Third Circuit vacancy. We already know where Senator Toomey stands about having a Black woman for U.S. Supreme Court, so we hope that doesn’t carry over to the Third Circuit,” Kenner said. ”We want him to honor what he always tells us, which is that he and Senator Casey work together to fill vacancies.”

On Feb. 25, following Biden’s nomination of Jackson to serve on the U.S. Supreme Court, Toomey issued a statement saying he looked forward to meeting with and vetting the nominee’s record.

“Only the most qualified jurists who will diligently serve as neutral umpires of the law—not as unelected legislators with preferred policy outcomes—merit confirmation to serve as guardians of the Constitution and arbiters of our laws on the Supreme Court,” Toomey said in the statement.

Along with worries about clashing agendas, there are also a few factors pointing to why Pennsylvania may not be at the top of Biden’s list for judicial nominations.

First, none of Pennsylvania’s three districts are on the list of federal courts experiencing judicial emergencies. With 16 lengthy vacancies, California tops that list, followed by New York. That is largely due to the fact that only two of the vacancies—Judges Lawrence Stengel and John Jones—are due for retirements. Four of the vacancies are due to the Judges Petrese Tucker, Cynthia Rufe, Darnell Jones and Timothy Savage taking senior status. And, according to litigators, those judges remain very active on the bench.

Also, according to reports detailing lingering civil case loads, Pennsylvania’s districts have not seen significant upticks in recent years.

However, a more significant factor could be Biden’s apparent desire to quickly fill as many judicial vacancies as possible. At the end of last year, Reuters reported that Biden finished his first year with the most confirmations of any president since Ronald Reagan. According to the American Constitution Society, 46 of Biden’s picks had been confirmed as of Feb. 24.

Moving so quickly, court watchers say, requires strategy, which could mean Biden is focusing on filling vacancies in states where his nominations will encounter the least resistance. Specifically, that means states with two Democratic senators. And the numbers appear to bare that out.

According to Russell Wheeler of the Brookings Institution, who has studied Biden’s nominations, in states where the senators are split between the parties, vacancies on average last for 328 days. In states with two Republican senators the average wait is slightly longer at 343 days. But in states with two Democratic senators, the average wait is much shorter: 194 days.

“I would assume that’s where they will put the most emphasis. But that won’t help litigants in Pennsylvania who are out of luck because they don’t have judges in place,” Wheeler said.

Aside from a recent slate of nominations in Ohio, Wheeler said, there have been few similar instances where senators from states with split party affiliation are seeing nominations. And there have also been some unusual signs of trouble, such as the recent decision by Sen. Ron Johnson, R-Wisconsin, to reverse course and oppose a Biden nominee that the senator had initially jointly recommended with his Democratic counterpart.

“The question is, are they trying to work with Toomey to get something done? [Sen. Dick] Durbin [chair of the judiciary committee] said he will respect home state senators, but he won’t let them stall indefinitely,” Wheeler said.

With so many openings in Pennsylvania, observers note that the Biden administration has an opportunity to significantly change the makeup of the courts.

More broadly, Lena Zwarensteyn, a senior director at The Leadership Conference on Civil and Human Rights, said the Biden administration and Senate leaders have done a “fantastic” job filling vacancies. But she said, in some instances, she has seen more pushback from Republican senators than she would expect given the qualification level of the nominees.

“I’m not too worried at the moment, but having lived through many years, certainly years of the Obama administration, we’re very aware of what’s possible,” she said.