Holding open Justice
Senators' lengthy absence during the election season — which followed a prolonged summer recess and a truncated September session — means that no judge has been confirmed since July 6. The election results likely will prompt yet more judges to retire or assume senior status (in which they manage reduced caseloads), which means this number could easily swell to 110 openings. Fully 13% of seats on the federal bench could be vacant by inauguration day.
With just a modicum of cooperation, Republican and Democratic senators could restore some of the judicial resources courts desperately need. There are, most notably, 20 well-qualified, mainstream district court nominees whom the Judiciary Committee approved by voice vote without dissent. A majority of them were recommended for the bench by their Republican home-state senators. They should get a final confirmation vote during the lame-duck session that began last week.
A failure to consider these nominees during the lame-duck session means that whole process will have to start over — a waste of effort exactly when the new Trump administration needs to fill a Supreme Court vacancy and create a new government. Vacancies will continue to pile up before the administration can focus on filling them; many will still be empty in 2018.
Throughout the first six years of the Obama administration, with a dearth of cooperation in the Senate, the number of judicial vacancies hovered around 90 — the highest number of vacancies ever allowed to remain unfilled for so long. After Republicans captured the Senate majority two years ago, the GOP leadership pledged that it would restore "regular order" to the upper chamber. Instead, despite many promises, there were few expeditious candidate recommendations or swiftly planned nominee hearings and committee votes. The major bottleneck was the Senate floor, because GOP leaders rarely scheduled final debates and votes.
So in 2015, the Senate confirmed just one circuit and 10 district judges; in 2016, it approved only one circuit and eight district jurists before departing to campaign in late September. During the entire 114th Congress, the Senate averaged fewer than one confirmation per month.
A clear example of the difficulties such obstruction creates is the Idaho District Court, where caseloads are now 20% higher than the national average. The court has one active judge and an 82-year-old second judge, who assumed senior status in July 2015. The nominee to fill this post has languished 11 months.
Another salient illustration is Texas, which confronts 13 vacancies (eight of which don't even have nominees). The U.S. Courts declared all 13 "judicial emergencies" because of the protracted length of the vacancy or the substantial caseload. For instance, judges in the Eastern District of Texas manage caseloads that are triple the national average.
Stalled confirmations obviously undermine the swift, economical and fair handling of cases, which erodes public respect for the confirmation system and the coequal branches of government. Drawing out the appointment process also forces talented, mainstream nominees to put their robust careers on hold — a situation that dissuades many strong candidates from contemplating the bench.
Some Republicans may assert that 2016 is a presidential election year, when the "Thurmond Rule" holds — that is, confirmations slow and halt, especially after a new president from the opposite party captures the election. But this "rule" is an unwritten custom, not a legal mandate — and one both parties have applied inconsistently at best. Moreover, the federal courts' dire straits show the Senate should look to other relevant traditions.
Most pertinent is that modern Senates and presidents conventionally have accorded competent, moderate nominees a final vote. A compelling example: the Senate confirmation of Stephen Breyer to the 1st Circuit after Ronald Reagan had defeated Jimmy Carter in 1980. Republicans at least should permit confirmation votes on the 20 highly qualified, moderate district nominees who have waited months.
The courts desperately need these openings filled, and most of the nominees are capable and uncontroversial. Moreover, by the time President Trump has his administration running and confirms a replacement for Scalia, there could be 135 vacancies. This could even precipitate third-branch dysfunction at a crucial time in the nascent Trump administration. All that can easily be avoided by confirming many judges now in the lame-duck session. Both parties should work together in these final weeks of 2016 to cut down this backlog of vacancies for the good of the courts, the Senate and the country.
Carl Tobias is a professor at the University of Richmond School of Law.