The prospect of a federal bench with nearly one out of every eight judicial seats vacant should scare the pants off every American. Yet few Americans are as worked up about it as those of us who think and worry about it a lot. Our argument was already a tough sell before the threat of global terrorism and a collapsed economy ate up every moment of the national political conversation. Now a 10 percent judicial vacancy rate seems like a Code Beige emergency in a Code Red world.
Part of the problem is politics: It has often seemed that the only people screaming for speedy judicial confirmations are panicked because it's their judges being blocked. The party not currently in control of the White House and Senate often sees less crisis than opportunity in a dwindling bench. Moreover, when the entire judicial selection process has been as fiercely politicized as it is has become lately, most Americans may suspect that empty benches might be better for democracy than full ones. But judicial vacancies are disastrous for Americans, all Americans, and not merely for partisan reasons, but also for practical ones. That's why in a recent speech, Justice Anthony Kennedy warned: "[I]t's important for the public to understand that the excellence of the federal judiciary is at risk. If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."
Yet this issue, which seems to light up editorial writers and Brookings scholars with such ease, appears to leave the rest of you cold. So here we are taking one last crack at scaring your pants off with some strictly nonpartisan facts about the dangers of judicial vacancies.
● Justice delayed truly is justice denied. There are approximately 850 lower-court federal judgeships, of which more than 100 are currently vacant, while 49 openings in 22 states are classified "judicial emergencies." Eighty-three of these are on the district courts—the trial courts that decide every important federal question in the country, on issues ranging from civil rights to environmental, economic, privacy, and basic freedoms. Whereas judicial obstruction once reached no further than the federal appeals courts, for the first time even noncontroversial district court nominees are being stalled by arcane Senate reindeer games. It stands to reason that if you can't get into a courtroom, if the docket is too packed for your case to be heard promptly, or if the judge lacks sufficient time to address the issues raised, justice suffers. This will directly affect thousands of ordinary Americans—plaintiffs and defendants—whose liberty, safety, or job may be at stake and for whom justice may arrive too late, if at all. In some jurisdictions, civil litigants may well wait two to three years before going to trial. In jurisdictions with the most vacancies, it will often take far longer for published opinions to be issued, or courts will come to rely on more unpublished opinions. More worrisome still, because the Speedy Trial Act requires that courts give precedence to criminal cases, some backlogged courts have had to stop hearing civil cases altogether.
● Overtaxed federal judges can't do justice at some point. Take, for instance, the federal court based in Denver, where five active judges are doing the work that ought to be done by seven. The Judicial Conference of the United States suggests the court needs another judgeship and has labeled the two vacancies a "judicial emergency" because the judges there each carry 593 instead of the 430 cases deemed optimal. Alliance for Justice today put out a new report on the jurisdictions designated as judicial emergencies. Among their findings: Judicial emergencies have more than doubled over the first 20 months of the Obama administration, and judicial emergencies now exist in 30 states. In many jurisdictions, judges who should have retired years ago are still actively hearing cases on courts that can't afford to lose even one more judge. This places unfair, undue pressure on every federal judge now sitting. Most judges have been stoic in the face of mounting work and caseloads. Few openly complain, lest they appear to be taking sides in the confirmation wars. Still the crisis is so urgent that some judges have begun to speak out: In May, Chief Judge Wiley Daniel of the U.S. District Court in Denver wrote to the majority and minority leaders in the Senate urging prompt confirmation and explaining that lingering vacancies impede public access to justice. Six highly regarded retired federal judges at the same time wrote to the senators that the current gridlock is not tenable for a nation "that believes in the rule of law." In 1997 and again in 2001, Chief Justice William Rehnquist admonished the White House and Senate, then in control of opposite parties, to fill the many vacancies for the good of the nation. Imagine how you would feel if your heart surgeon had to perform thousands of surgeries each day. That's how worried you should be about federal judges forced to manage ever-expanding caseloads.
● Potential judges won't agree to be nominated. Depending on who's doing the calculations, the average length of time between being nominated and confirmed has more than quadrupled in the Obama administration. As a result of procedural shenanigans in the Senate, nominees may remain in limbo for months, with careers and law practices stuck on hold as they await a vote that may never come. Indeed, 6th Circuit Judge Jane Stranch waited 13 months for a 71-21 vote, while Judge Albert Diaz, a 4th Circuit nominee, has waited nearly 11. As the wait for confirmation drags on ever longer, the best nominees will be inclined to start to wonder whether it's worth the bother. Many excellent potential nominees may not even entertain the prospect of judicial service anymore. As President Stephen Zack, president of the American Bar Association, recently put it: "The current gridlock discourages anyone from subjecting themselves to the judicial nomination process."
● The more seats remain vacant, the greater the incentive to politicize the process. In the George W. Bush administration, the judicial-vacancy rate dropped to 4 percent. * Now it's up to 10 percent again. The stakes become higher and higher as the opportunity to significantly reshape the federal bench becomes more real. The incentive for a Senate minority to obstruct nominees also grows with the vacancy rate. The party not in control of the White House invariably believes it will recapture the presidency in the next election and thus has the opportunity to appoint judges more to its liking. Accordingly, each nominee obstructed now is another vacancy reserved for the out-of-power party's president. These dynamics are evident with the midterm elections approaching: The process has now essentially shut down. That's why only one appellate nominee even received floor consideration between April 23 and Sept. 12 of this year.
● The rampant politicization of the selection process is undermining public respect for the co-equal branches of government. President George W. Bush's use of the White House for a ceremony introducing his first 11 appellate nominees and his promotion of his judicial nominees exacerbated the sense that federal judgeships were a political prize for the winning party. Obama has attempted to depoliticize the confirmation process by naming judges generally regarded as centrist and moderate—much to the dismay of many liberals. But it has changed nothing. When the Senate confirmation process degenerates into cartoonish charges of judicial unfitness, name-calling, recriminations, and endless paybacks, the consequences go far beyond the legitimacy of Congress, to the legitimacy of the courts themselves. As courts are batted around for partisan political purposes, nominees and judges appear to be purely political actors—no different than members of Congress or the president. That doesn't just hurt judges. It hurts those of us who rely on judges to deliver just outcomes.
Americans watching the confirmation wars won't ultimately recall which president named which judge or what the final vote was. But they may begin to accept as normal an inaccurate and deeply politicized vision of judges as a bunch of alternating partisan hacks and a federal bench that is limping, rather than racing, to do justice.
Correction, Sept. 28, 2010: This article originally stated that the vacancy rate was 4 percent under the Clinton administration; the rate was 10 percent. It was under George W. Bush that the vacancy rate dropped to 4 percent. (Return to the corrected sentence.)