Senate Democrats Need to Attend to Filling Court Vacancies

COMMENTARY Courts

Senate Democrats Need to Attend to Filling Court Vacancies

Nov 29th, 2018 2 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.
Such across-the-board opposition cannot be justified by claiming that Trump’s judicial nominees are unqualified. jirkaejc/Getty Images

Key Takeaways

This week, nearly 50 judicial nominees await Senate confirmation.

Those 84 Trump judges received more negative confirmation votes in less than two years than the 2,676 judges confirmed during those 100 years.

The Senate should do as Aron suggested in 2013 and prioritize filling current vacancies on the nation’s district and appeals courts.

Like him or not, President Donald Trump has a strong impact on people. Many of his opponents, for example, almost mindlessly attack his nominees to executive and judicial-branch positions simply because he nominated them.

It was not always so. Five years ago, in October 2013, Nan Aron, president of the left-wing Alliance for Justice, testified before the House Judiciary Committee about whether Congress should create new judgeships. “I can say without hesitation that today, with more than one of ten judgeships vacant, with caseloads rising rapidly . . . the first step in resolving the crisis in our courts is to fill all the existing district and circuit court seats,” Aron told the committee.

Judicial vacancies are 30 percent higher than when she said that.

Aron called it “astonishing” that judicial vacancies were higher than when President Obama took office. Vacancies today are 13 percent higher than when Trump took office; four of the previous five presidents saw an average decline of 24 percent at this point.

Aron called it “striking” that 39 judicial vacancies had been designated “judicial emergencies” because they had been open for an average of 749 days. Today, 63 vacancies are in this emergency category, open an average of 897 days.

Aron also described how these vacancies have “real-world consequences for real people.” These include delayed cases, rushed decisions, and regularly pushing aside civil cases in favor of the criminal docket. If that was true with 10 percent of the judiciary vacant, what would she call it today with 14 percent of judicial positions empty?

Unfortunately, the Alliance for Justice and others on the far Left staunchly oppose virtually all of Trump’s judicial nominees. They have pushed Senate Democrats to mount an almost irrational campaign of automatic, blind opposition.

Nearly 55 percent of Trump’s 84 judges confirmed so far in the 115th Congress, for example, received negative votes, compared to just 2 percent of all federal judges who were confirmed during the entire 20th century. Even more shocking is that those 84 Trump judges received more negative confirmation votes in less than two years than the 2,676 judges confirmed during those 100 years.

Such across-the-board opposition cannot be justified by claiming that Trump’s judicial nominees are unqualified. The American Bar Association has rated “well qualified” a higher percentage of Trump’s nominees to the U.S. Court of Appeals than any of his five predecessors. Democrats once claimed that the ABA rating is the “gold standard,” yet in the Trump era, an average of 34 have voted against his appeals court nominees, more than ten times the average under the previous five presidents.

We are in the longest period of triple-digit judicial vacancies in more than 25 years. Three-quarters of those vacancies in the early 1990s, however, were new judicial positions recently created by Congress. The current situation — with vacancies almost double what Democrats once called a “crisis” — exists because of tactics to keep existing vacancies from being filled.

On July 25, 2000, under a Democratic president, then-Judiciary Committee Chairman Patrick Leahy, D-Vt., said: “Those fostering this slowdown of the confirmation process . . . are risking harm to institutions that protect our personal freedoms and independence.” Judicial vacancies today are more than double what Leahy was protesting.

The Senate should do as Aron suggested in 2013 and prioritize filling current vacancies on the nation’s district and appeals courts. This week, nearly 50 judicial nominees await Senate confirmation. It’s time to push through the irrational opposition and get it done.

This piece originally appeared in the National Review