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Aug. 1 — The Senate's slow pace in moving President Barack Obama's nominees for the federal bench puts it on track to end 2016 with only a small group of newly confirmed judges to fill a growing number of courthouse vacancies.
The stalled nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to serve on the Supreme Court gained national attention. But Senate Majority Leader Mitch McConnell (R-Ky.) has kept the chamber from approving no more than 15 other judges since January. Only eight of those would fill posts in the federal district courts and just one would serve as a federal circuit judge.
McConnell and other Republican leaders gave no indication as they left for a seven-week recess that they plan to confirm any more of Obama's nominees when they return in September for a month of work before heading back to the campaign trail. While even some Republicans are pressing for the Senate to take up more judicial nominees from their home states, it remains unclear whether any more of Obama's nominees, including Garland, will be considered during the post-election (lame-duck) session.
The overall record for the 114th Congress is much the same, with the Senate approving only 15 judges after Republicans took over the chamber in 2015. As a result, the Senate now is on track to confirm only 30 civilian judges over the entire two-year period.
McConnell's hardball strategy aims to give the Republican Party and its presidential nominee Donald Trump maximum say in the composition of the federal courts. But legal experts said delays in filling key judicial posts are creating a large backlog of vacancies and creating more “emergencies,” an official designation based on both the size of a district's caseload and the length of the vacancies.
“The obstruction that we've been seeing in the Senate both around Judge Garland's nomination as well as the lower courts vacancies is unprecedented and it's troubling because we need a functioning court system,” Alicia Bannon, senior counsel in the Brennan Center for Justice’s Democracy Program at New York University School of Law, told Bloomberg BNA.
Democrats said Republicans are following the so-called Thurmond rule that forecloses consideration of judicial nominees in the months following the political conventions (See previous story, 04/27/16). However, McConnell's decision to hold no hearings or otherwise consider Garland's nomination was made even before Obama sent his name to Capitol Hill in March.
The majority leader hasn’t said whether more judicial nominees will move, McConnell spokesman Don Stewart told Bloomberg BNA. “He hasn’t made any proclamations on what we’re going to do in the fall.”
Stewart said Democrats took a similar approach to nominees when they controlled the chamber.
Potentially the last of Obama's judicial nominees to be confirmed was Brian Martinotti to serve as a judge for the District of New Jersey. Martinotti's nomination was pending for a year before it was approved July 6.
Also approved this summer was the nomination of Robert Rossiter to serve in the District of Nebraska (See previous story, 06/27/16). Like Martinotti, Rossiter waited a year for his nomination to be put to a floor vote but then was easily approved.
This year's tally included only six other district judges and only one circuit judge—Luis Felipe Restrepo to serve on the U.S. Court of Appeals for the Third Circuit. The other judges confirmed included three to serve on the Superior Court of the District of Columbia, two to serve on the U.S. Court of International Trade and one to serve on the U.S. Court of Appeals for the Armed Forces.
But the Senate left 29 nominations on the chamber's executive calendar when it departed July 15 for the political conventions. The 29 nominees cleared in committee and awaiting floor action include 18 for district courts, two for federal appellate courts, two for the U.S. Court of International Trade, five for the U.S. Court of Federal Claims, and two for the U.S. Tax Court. The nominees for the Federal Claims Court were first put forward by Obama in the spring of 2014.
Garland's name, meanwhile, remains on a list with 30 others still pending in the Judiciary Committee chaired by Sen. Charles Grassley (R-Iowa).
Committee ranking member Patrick Leahy (D-Vt.) criticized the handling of Garland's nomination when the panel met 120 days after his nomination was first sent to Capitol Hill. But Leahy said the slow pace in filling other judgeships also poses a threat.
Leahy said at the start of the 114th Congress that there were 43 judicial vacancies, with 12 of those considered “emergencies.” Almost two years later, he said, vacancies have nearly doubled and emergency vacancies have nearly tripled.
The Administrative Office of the U.S. Courts said that as of Aug. 1, the number of judicial vacancies had grown to 91. Included in that number are 71 at the district courts, 11 at the U.S. appeals courts, two at the Court of International Trade, six at the Court of Federal Claims and one at the Supreme Court. It said 57 nominees for those vacancies are currently pending.
Of the 91 vacancies, 30 of these are considered to be emergencies. Of these, 10 are in Texas alone, in districts that include the Dallas-Fort Worth, Houston and Beaumont areas. Other states where emergencies exist include Alabama, California, Florida, Georgia, Idaho, Indiana, Kansas, Minnesota, New York, North Carolina and South Carolina.
An insufficient number of judges is also threatening the timely processing of cases in the appellate courts, particularly the U.S. Court of Appeals for the Fifth Circuit, which includes Louisiana, Mississippi and Texas.
Bannon said that during the final quarter of Obama's presidency, vacancies jumped by 112 percent, citing a recent Brookings Institution analysis of confirmation rates over recent years.
Bannon's own examination of vacancies found that the most common result is widespread slowdowns in processing cases.
“It took a longer time to hear cases, it took a longer time to schedule trials, motions sat for longer periods waiting to be heard,” Bannon said. “That was a very widespread concern that judges weren't able to turn to their cases in a timely way, and that issue was more serious on the civil side.”
University of Texas law professor Stephen Vladeck told Bloomberg BNA that the biggest issue arising from an extended vacancy at the Supreme Court is the effect it has on the court's ability to hand down decisions in cases in which the justices are evenly divided.
“We’ve already seen this shortcoming have a major effect on the Supreme Court’s most recent term, with four cases dismissed due to a tie, and a handful of others in which the Court had to engage in some methodological acrobatics to avoid deadlocking,” Vladeck said. “Of course, those who approve of the lower-court decision in cases in which the justices are evenly divided won’t mind that result, but in the long term, the vacancy shifts power from the Supreme Court to the lower courts—which will have the final say in an even greater percentage of cases until the court is back to full capacity.”
The vacancies at the lower courts have a much more subtle—but in some ways more important—impact because they dramatically increase the burden on already overworked judges, Vladeck said.
A vacancy only qualifies as an “emergency,” Vladeck said, if it ticks the average filing per judge over what is already a fairly high bar.
“But in the Eastern District of Texas, for example, the three existing district court vacancies have meant that the average load on the current judges is more than double the total of what would count as an emergency,” Vladeck said.
Vladeck said putting so much pressure on sitting judges can lead to three separate problems: individual cases get less attention; judges look for faster and easier ways to clear their docket; and judges make mistakes.
None of the judges currently awaiting confirmation on the executive calendar are for Texas district courts. Instead, five judges nominated by Obama to serve on those courts—including Karen Gren Scholer for the Eastern District—remain pending in committee with Garland. All of the judges were nominated the same week in March.
Among the nominees who were high up in the queue for confirmation votes before the Senate left town was Edward Stanton, nominated by Obama in May 2015 to serve as a district judge for the Western District of Tennessee (See previous story, 04/12/16). Sen. Lamar Alexander (R-Tenn.) backed his nomination but told Bloomberg BNA that he doesn't know whether the nominee will get a vote in the fall.
Similarly, Sen. Patrick Toomey (R-Pa.) said he is uncertain whether the two nominees he supported—Susan Paradise Baxter and Marilyn Jean Horan to serve in the Western District of Pennsylvania—have a chance to be confirmed after lawmakers return. Minus action on them, Toomey told Bloomberg BNA that the nominations may have to be sent back to the White House at the end of the session, along with many others.
But Sen. Deb Fischer (R-Neb.) expressed gratitude that the Senate eliminated the judicial emergency in her state before the Senate shut down for the summer. She said she had been working to fill the Nebraska district court vacancy for more than two years. She said she and former Sen. Mike Johanns (R-Neb.) recommended Rossiter to Obama in August 2014, after first eliminating about 20 other individuals for the post.
Fischer said that, with only three judgeships, Nebraska's federal district court is relatively small but has one of the busiest dockets in the country.
“During the 12-month period ending March 31, 2016, Nebraska had the most per-judgeship weighted filings among the eight states that have only three authorized judgeships in a single federal district,” Fischer said. “With a small bench and a full docket, it is important that Nebraska's federal district court operate at full capacity.
“I thank the president for listening to my advocacy for Mr. Rossiter and for his support for him,” Fischer added.
To contact the reporter on this story: Nancy Ognanovich in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Heather Rothman at email@example.com
To see the number of judicial emergencies as of Aug. 1, go to http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx.
The recent Brookings Institution analysis of confirmation rates in recent years is at http://www.brookings.edu/blogs/fixgov/posts/2016/06/06-judicial-vacancies-senior-status-judges-wheeler.
To see impact of vacancies by Alicia Bannon, Brennan Center for Justice, visit https://www.brennancenter.org/publication/impact-judicial-vacancies-federal-trial-courts.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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