Time to Confirm More Federal Judges

COMMENTARY Courts

Time to Confirm More Federal Judges

Jan 29th, 2019 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.

Key Takeaways

Even though vacancies are 26 percent higher today, the partisan campaign against qualified and fair judicial nominees is going full steam ahead.

The administrative office of the federal courts designates some judicial vacancies as “emergencies” because they have been open so long.

"It is time for fair minded senators to join the president in challenging the delaying tactics. Our nation will be dramatically poorer unless they do.”

“We must redouble our efforts to work with the president to end the longstanding vacancies that plague the federal courts and disadvantage all Americans. That is our constitutional responsibility.” So said Senate Judiciary Committee Chairman Patrick Leahy in July 1999.

He was right. To be sure, Leahy said this when Democrats occupied the White House and controlled the Senate. But when he said it, there were 69 vacancies across the federal judiciary. Today, even though Republicans control the judicial appointment process, vacancies are 77 percent higher. That should count for something.

On the other hand, perhaps Leahy was saying (without really saying) that constitutional responsibilities vary depending on which party is in charge. After all, in September 1997, he had said that the “continuing partisan campaign against qualified and fair judicial nominees has to come to an end.” Yet even though vacancies are 26 percent higher today, the partisan campaign against qualified and fair judicial nominees, far from coming to an end, is going full steam ahead with his help.

In July 2000, Leahy said “those fostering this slowdown of the confirmation process” are “risking harm to institutions that protect our personal freedoms and independence.” Again, that was when Democrats were in charge. But vacancies are 103 percent higher today. Only 55 percent of the judicial nominees of Donald Trump have been confirmed, compared to an average of 74 percent for the previous five presidents at this point.

That is definitely, to quote Leahy, a “slowdown of the confirmation process,” and he is among those fostering it. Surely, the harm done by judicial vacancies to institutions that protect our personal freedoms does not diminish as those vacancies increase. That just makes no sense.

The administrative office of the federal courts designates some judicial vacancies as “emergencies” because they have been open so long. In March 2012, Senate Minority Whip Dick Durbin warned that judicial emergency vacancies would make the administration of justice would suffer at every level. When he said that, 35 judicial emergency vacancies had been open an average of 725 days. Today, 63 judicial emergency vacancies have been open an average of 897 days.

We are in the longest period of triple digit judicial vacancies in more than 25 years. Average vacancies under Trump are 35 percent higher than during the first two years of President Obama, and 49 percent higher than during the entire Obama administration.

At a Senate Judiciary Committee meeting in June 2000, Leahy argued against turning the confirmation process “into a protracted ordeal of unreasonable delay” that has “done enough harm, injured too many people good people, and it must not happen again.” Vacancies are 85 percent higher today than back then. Yet there is not a whisper from Leahy and his fellow Democrats about harm to institutions, injuring good people, unreasonable delay, or any such thing.

The solution to this crisis comes from Nan Aron, president of the left wing Alliance for Justice. Writing in the San Francisco Chronicle in July 1999, she argued that the president “has a duty to fill judicial vacancies and appoint jurists who share his views. It is time for fair minded senators to join the president in challenging the delaying tactics. Our nation will be dramatically poorer unless they do.” With judicial vacancies 77 percent higher today, that call to action is more urgent than ever.

This piece originally appeared in The Hill on 11/30/18