By Carl Tobias, University of Richmond Law School
On this Thanksgiving holiday, the United States circuit and district courts have reason to be thankful that a number of the 83 lower court vacancies which have existed for more than three years may finally be filled. Those openings, which first reached 90 in August 2009, have hovered at or near that figure ever since. However, it remains unclear precisely how many of those empty seats the U.S. Senate and President Barack Obama will soon fill. This uncertainty persists, especially given the mixed record of cooperation on judicial appointments compiled throughout the first Obama Administration and the myriad difficulties, particularly the “fiscal cliff,” which the nation continues to experience. Nevertheless, Obama and the Senate must work together this Thanksgiving to fill the unoccupied posts.
Democrats and Republicans have cooperated somewhat in the area of judicial selection. The federal bench presently experiences 83 vacancies, while President Obama has nominated 49 candidates for those openings. The judiciary should be grateful that the chief executive has nominated, and the Senate has confirmed, two extraordinary Supreme Court Justices, 30 exceptional appellate judges, and 128 excellent district judges.
Obama has assiduously sought the guidance and support of Democrat and Republican elected officials before actual nominations and has tapped nominees of balanced temperament, who are intelligent, diligent, independent and ethical, as well as diverse vis-á-vis ethnicity, gender and ideology. Numerous observers criticized the administration for nominating too slowly in 2009, but the White House subsequently accelerated the pace. The courts ought to give thanks for Obama’s increased diligence when making nominations, as manifested by his nominating seven well qualified district court candidates last week.
The bench should thank Senator Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee, and Senator Charles Grassley (R-Iowa), the ranking member, for expediting panel consideration and Senator Henry Reid (D-Nev.), the majority leader, for attempting to cooperate closely with Republicans on confirming nominees. A signal of collegiality is that Leahy may hold only one more nomination hearing this year.
The federal judiciary and the 19 strong lower court nominees, most of whom the committee approved with no substantive opposition and have waited months for votes, should also be grateful that the Senate finally returned to Washington last week for a lame duck session. Moreover, the bench should be heartened by President Obama’s call for greater bipartisanship in that session and the Republican leadership’s apparent willingness to work effectively with Democrats to solve the country’s problems. One critical difficulty which bipartisanship can solve is the plethora of judicial vacancies that jeopardize the delivery of justice.
Despite the cooperative efforts to fill the many openings recounted above, the Senate could have approved a considerably larger number of judges, had some Republican members cooperated more fully with Democrats. Throughout most of the 112th Congress, GOP senators have slowed floor votes by placing holds on nominees, while Senator Mitch McConnell (R-Ky.), the minority leader, has cooperated less than he might by entering too few temporal agreements for nominee floor ballots. Indeed, after returning to Washington for three days, the Senate recessed last Thursday for the Thanksgiving holiday without considering any of the 19 well qualified nominees on the floor. Democrats and Republicans must cooperate more closely in confirming judges because the ten percent vacancy rate can erode courts’ efforts to swiftly, inexpensively and fairly resolve cases.
The federal judiciary, which has been operating without one in ten of its authorized active judgeships, apparently has much for which to be thankful this Thanksgiving. However, the promising signs will only materialize into judicial confirmations if Democrats and Republicans work cooperatively in the lame duck session and the 113th Senate for the good of the courts, Congress and the nation.
Tobias is the Williams Chair in Law at the University of Richmond.