Justice John Paul Stevens’ recent announcement that he will resign has received enormous attention from the media and the American public. That is appropriate, as Stevens compiled a distinguished, lengthy record of service, the U.S. Supreme Court declares the law of the land and each vacancy has substantial practical and symbolic importance. Because replacing Stevens will necessarily consume so much energy during the next several months, it becomes even more critical to remember the many lower court openings.
When the 111th Senate recently returned from its spring recess, the federal bench experienced 103 vacancies out of the 858 appeals and district court judgeships. The empty positions first exceeded 90 last August and have remained above that number ever since. These unfilled seats, which are 11% of the total, erode swift, inexpensive and fair case disposition. Thus, now that the Senate has returned, President Barack Obama should expeditiously nominate, and the Senate must promptly confirm, lower court judges, so that the bench will have all of its members.
For nearly a quarter-century, Democratic and Republican accusations and recriminations as well as incessant paybacks have troubled judicial appointments, primarily because of divided government. Democrats now control the executive branch and the upper chamber; however, they should continue attempting to cooperate with the GOP and stop or temper this unproductive dynamic. Obama was criticized for nominating slowly in 2009, but the chief executive has accelerated the pace, nominating more in the past 100 days than in 2009′s first 300. The president has fully consulted by soliciting advice from Democratic and Republican home-state senators prior to official nominations. Obama has tapped consensus nominees, with balanced temperament, who are very intelligent, ethical, diligent and independent as well as diverse in terms of ethnicity, gender and ideology. Sen. Patrick Leahy (D-Vt.), the Judiciary Committee chairman, has swiftly conducted hearings and votes, sending nominees to the floor where most of the appellate choices have languished for more than four months.
Republicans, for their part, should attempt to cooperate more. In the Judiciary Committee, the minority has routinely held over nominee votes for a week absent persuasive reasons. However, the major bottleneck has been the Senate floor. The minority leader, Sen. Mitch McConnell (R-Ky.), has not promptly entered time agreements for votes. The unanimous consent procedure enables one anonymous senator to delay floor votes, and this practice has stalled many nominees. GOP demands for recorded votes on all nominees have also consumed scarce time. Most problematic has been Republican refusal to agree on votes for uncontroversial nominees. Indeed, when the Senate has finally voted on appeals court prospects, the chamber has confirmed virtually all by overwhelming majorities. The quintessential illustration was Virginia Supreme Court Justice Barbara Keenan. The well- qualified, noncontroversial jurist waited four months for a 99-0 floor vote that only happened after Democrats were forced to file an unnecessary, time-consuming cloture petition.
The 179 appellate court judgeships, 18 of which are vacant, are essential, as the 12 regional circuits are the courts of last resort in their areas for 99% of appeals. Critical are the U.S. Court of Appeals for the 2d Circuit, which has openings in four of 13 judgeships, and the 4th Circuit, with vacancies in three of 15. The president has submitted 19 fine nominees, and he should continue working closely with Leahy and Senator Harry Reid (D-Nev.), the majority leader, who schedules floor debates and votes, and their Republican counterparts to facilitate appointments. The Senate has approved seven of the nominees, so it must rapidly confirm the five awaiting floor votes and finish processing the remaining seven.
The 679 district judgeships, 85 of which are empty, are significant because district judges hold federal trials and ascertain the facts, while appellate courts affirm four-fifths of appeals from their decisions. The president normally defers more to home-state senators because the lawmakers know attorneys who possess the requisite qualifications. Obama has nominated 39 highly competent individuals. The Senate has approved 11, so the chamber must swiftly confirm the 20 waiting for floor action and conclude review of the other eight.
The vacancies in 11% of federal appeals and district court judgeships undermine prompt, economical and fair case resolution. Thus, Obama must swiftly nominate, and senators must expeditiously confirm, many outstanding judges now that the Senate has returned.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.
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