On Confirmations, Actions Speak Louder Than Words

COMMENTARY Courts

On Confirmations, Actions Speak Louder Than Words

May 6th, 2019 1 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
High levels of longstanding vacancies are harmful to the administration of justice. ftwitty/Getty Images

Key Takeaways

“Those who delay or prevent the filling of these [judicial] vacancies must understand that they are harming the administration of justice."

The Senate is failing to keep up with normal attrition today; vacancies have risen by 10 percent in the last two years.

The federal judiciary is still in the longest period of triple-digit vacancies since the early 1990s.

A senior member of the Senate Judiciary Committee, with a president of his party in the White House, said that “those who delay or prevent the filling of these [judicial] vacancies must understand that they are harming the administration of justice. Courts cannot try cases, incarcerate the guilty or resolve civil disputes without judges.” Overall, judicial vacancies are 89 percent higher than when Senator Patrick Leahy, D-Vt., said that. He has yet to say a word about the judicial vacancy crisis today.

In October 1998, Leahy noted that 21 judicial nominees had been approved by the Judiciary Committee and were waiting on the Senate’s executive calendar to be confirmed. Today, 34 nominees to the U.S. District Court and U.S. Court of Appeals are on that calendar, yet Leahy has not called for their consideration.

When Leahy declared a “judicial vacancies crisis,” 34 vacancies had been designated “judicial emergencies” by the Administrative Office of the U.S. Courts. These are vacancies that have lasted so long that they have a particularly negative effect on judicial caseloads. Today, judicial-emergency vacancies are 150 percent higher, but Leahy has said nothing.

In 1998, Leahy demonstrated the judicial-vacancies crisis in several ways. He said, for example, that “the Senate has been losing ground to normal attrition over the last two years.” He was right. Vacancies had risen from 63 to 71. Well, the Senate is failing to keep up with normal attrition today; vacancies have risen by 10 percent in the last two years. No word from Leahy.

One year earlier, Leahy said that “confirming federal judges should not be a partisan issue.” Since Leahy was elected in 1974, the Senate has confirmed 2,323 judges to the federal district, appeals, and supreme courts. He voted “no” 64 times; you guessed it, all Republicans. In 1998, with a Democrat in the White House, Leahy called filibusters of judicial nominees a “travesty.” Since then, he has voted 60 times to filibuster judicial nominees; right again, all Republicans.

Partisan obstruction of judicial nominations has become so relentless that Republicans had to take the unusual step of reinterpreting Senate Rule 22 to take one of those obstruction tactics off the table. The federal judiciary is still in the longest period of triple-digit vacancies since the early 1990s. High levels of longstanding vacancies are harmful to the administration of justice, no matter which party occupies the White House or controls the Senate. It’s time to fill those vacancies.

This piece originally appeared in the National Review