Why the judicial vacancy crisis matters.

The law, lawyers, and the court.
Sept. 10 2010 3:46 PM

Empty Chambers

Why the judicial vacancy crisis matters.

Goodwin Liu. Click image to expand.
Goodwin Liu still awaits confirmation

Maybe it's a failure of language. Perhaps we've been referring to it as the "judicial-vacancy crisis" for so long that nobody believes it's a crisis anymore. Maybe we should upgrade it to a national judicial disaster or the global war on the judiciary. As the Los Angeles Times reported last week, approximately one federal judicial seat in eight is now vacant, and more are opening up. But instead of attempting to fix the problem, both sides argue over who is to blame. 

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Barack Obama has seated fewer federal judges than any president since Richard Nixon. (Although, to be sure, when Nixon was President, there were only 60 percent of the number of federal judgeships as today.) Despite the Democrats' majority in the Senate, 102 out of 854 seats are vacant, and fewer than half of Obama's nominees have been confirmed. Now cue the finger-pointing. Democrats say Republicans are deliberately gumming up the confirmation process for Obama judges, using arcane Senate procedures and threats of filibusters to stretch out the process for even the most noncontroversial appointees. They're right. Republicans respond that Democrats started this game, and that the buck stops at Obama, who got off to a slow start with judicial nominations and never bothered to make this issue a priority. They're right too. 

Of course, not all blame is created equal. While it's true that Obama has been slow to put forth judges and allowed the left-leaning American Bar Association extra time to vet his nominees, Republican obstruction has also reached new lows with this administration. As Russell Wheeler, who studies judicial vacancies at the Brookings Institution, explained to the Times, the longstanding political parlor game of stalling opposing federal-appeals-court nominations has recently "spread like a virus to the district courts." And despite some cries that Obama is stacking the bench with radical, wild-eyed liberals, the president has—with very few exceptions—nominated almost exclusively a slate of racially diverse moderates, who tend to receive near-­unanimous support when they finally come to a vote. So when Senate Republicans suggest that Obama or Harry Reid is at fault for declining to stage a massive showdown over the judiciary in the Senate, it starts to sound a bit as if they are demanding greater obstruction of their own obstructionism.

But who's at fault for the judicial-vacancy standoff is only half the story. The real problem lies in convincing Americans that it matters. With expensive and acrimonious judicial-election campaigns on the rise, and the years-long attacks on "activist judges," Americans can't be faulted for thinking that fewer judges might just be a good thing. It's hard to sell a judicial-vacancy crisis to a nation that isn't always sold on the judiciary.

There is clearly an enthusiasm gap over all things judicial. By the time he left office, President George W. Bush—even facing a Democratic Senate—had seated almost a third of the federal bench. Bush cared passionately about reshaping the bench, and he expended political capital to do so. Surprisingly for a constitutional lawyer, Obama seems to feel differently. But for all the complaints about judges who insert themselves into the legislative and cultural life of the country, judicial "activism" clearly cuts both ways. Whatever side you're on, the fight over gay marriage will be decided in the courts, as will the fight over regulating carbon emissions. The Voting Rights Act and health care reform laws are under attack in the courts, but so are Arizona's immigration reform and Chicago's new gun laws. Whether you support Obama's legislative agenda or abhor it, having properly functioning courts should matter, because today in America every single legislative action has an equal and opposite legal reaction.

I suppose we can all go on parsing the words "advice and consent" or wish ourselves back to a less partisan era, as ever more seats open up and remain unfilled. But ultimately the judicial-vacancy crisis is a partisan problem with bipartisan consequences. As Nan Aron at the liberal Alliance for Justice puts it, "Every day Americans look to the courts to address problems affecting their daily lives. With the high number of vacancies, their ability to stand up for their rights will be unacceptably delayed." The increasingly partisan confirmation wars also mean that outstanding nominees are unwilling to put their lives on hold for more than a year, and sitting judges are unable to retire. Justice Anthony Kennedy warned in August that the rule of law itself is "imperiled" if we are willing to sacrifice judicial excellence to partisan politics. The unspoken paradox of the judicial-vacancy deadlock is that in regularly denigrating and politicizing the judiciary, we've come to believe that a broken judiciary is not in fact a problem at all.

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A version of this article appears in Newsweek.