Judicial Vacancies Are Far Past the Crisis Point, for No Good Reason

COMMENTARY Courts

Judicial Vacancies Are Far Past the Crisis Point, for No Good Reason

Mar 22, 2019 3 min read
COMMENTARY BY
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas Jipping is a Senior Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies.
District court vacancies have been in triple digits since Trump took the oath of office and have averaged 117. Robert Daly/Getty Images

Key Takeaways

America is now in the longest stretch of triple-digit vacancies on the federal judiciary since the early 1990s.

Today, 128 positions on the U.S. District Court are vacant — nearly twice as many as when the Brennan Center declared a crisis.

Almost two-thirds of the vacancies on U.S. District Courts are “judicial emergencies.”

In 2010, vacancies on federal court benches topped 100 for the first time in nearly a decade. Writing in Slate, Dahlia Lithwick argued that the situation was worse than a mere “judicial-vacancy crisis.” A more accurate description, she suggested, would be “a national judicial disaster or the global war on the judiciary.”

If Lithwick felt the 12 percent vacancy rate then warranted a more apocalyptic label, I wonder what she would call today’s 16.2 percent rate.

America is now in the longest stretch of triple-digit vacancies on the federal judiciary since the early 1990s. Vacancies were sky-high then only because Congress had just created 80 brand-new judgeships.

Vacancies today are 35 percent higher than when President Trump took office and for a completely different reason: Trump’s political opponents have implemented a strategy of deliberate obstruction.

Consider some of the confirmation process “milestones” Democrats have achieved in a little more than two years.

They have forced the Senate to take a separate vote to invoke cloture, or end debate, on seven times as many judicial nominees as under the previous five presidents combined at this point of their presidencies. Because Democrats reinterpreted Senate rules in 2013 to make ending debate easier, those separate votes can no longer defeat a nomination, but they can definitely delay it. The Senate almost never took this extra step when it meant something. Now, however, the chamber is forced to take these votes routinely, solely as an obstruction device.

Welcome to the new, time-wasting normal. Senate Rule 22, which provides for this separate vote, has applied to nominations since 1949. Over the next three-quarters of a century, fewer than 10 senators voted against ending debate on a judicial nomination on only six occasions. After all, what’s the point of taking a vote to end debate if no one wants to debate? But single-digit votes to keep debating have already happened 14 times since Trump took office. It’s as if Democrats are doing this just for sport.

Back to the vacancy crisis/disaster thing. In a 2013 report, the left-leaning Brennan Center for Justice raised the alarm about vacancies on the U.S. District Court. The center declared that the 65 vacancies constituted a “crisis,” one that “limits the capacity of district courts to dispense justice and affects the millions of Americans who rely on district courts to resolve lawsuits and protect their rights.” A vacancy rate of almost 10 percent, said the report, was “historically unsustainable.”

Today, 128 positions on the U.S. District Court are vacant — nearly twice as many as when the Brennan Center declared a crisis. During the Barack Obama presidency, vacancies on this court averaged 66; they peaked (at 83) only in his very last month in office.

Yet, district court vacancies have been in triple digits since Trump took the oath of office and have averaged 117.

The Brennan Center said that another way to “gauge the severity of the vacancy problem” is the number of vacancies designated as “judicial emergencies.” The Administrative Office of the U.S. Courts uses a formula to flag vacancies that have been open a long time and have an especially negative effect on judicial caseloads.

In September 2013, 29 vacancies on the U.S. District Court fit that definition. They had been open, on average, almost two years (724 days). Today, almost two-thirds of the vacancies on U.S. District Courts are “judicial emergencies.” And those 80 seats have been vacant, on average, for 827 days.

The Brennan Center took a strong stand in 2013 because the “vacancy crisis in the district courts is unprecedented.” That crisis, or course, is no longer unprecedented. Indeed, it’s comparatively mild to what we have now.

It’s time for those on the Left to show the same concern for timely justice now and urge the Senate to approve the dozens of highly qualified district court nominees waiting for confirmation.

This piece originally appeared in The Washington Examiner