Senate Must Act Now and Throughout 2012 to Reduce Pressure on Federal Courts

As we enter an election year likely to be rife with partisan gridlock in Congress, few are expecting a banner year in terms of judicial confirmations.  But history shows that confirmations often occur throughout election years and, with 85 vacancies at the beginning of the year and more certain to occur throughout the year, the federal judiciary desperately needs the confirmation process to speed up, not slow down further in 2012.

When the confirmation process slows in an election year, it is usually following a productive period when the vacancy rate on the federal courts decreases.  But that has not happened over the past three years.  Instead, the Senate’s sluggish confirmation process has simply failed to keep pace with the number of new judicial vacancies that have occurred since President Obama took office. The slow pace of judicial confirmations in the Senate has seen the number of judicial vacancies explode from 55 when President Obama took office to 85 today. Such a high number of vacancies so far into a President’s term is unprecedented.  At this time during George W. Bush’s presidency, the number of vacancies had been reduced to 46, even though he entered office with 80 vacancies.  Similarly, at this time during Bill Clinton’s presidency, there were about 60 vacancies, even though he encountered 109 when he first took office.

When the Senate returns for session on January 23rd, there will have been more than 80 vacancies on the federal bench for 936 straight days, dating back all the way to July 2009.   Outside of a completely anomalous period when Congress established 85 new judgeships in 1990, never before has the number of vacancies risen so sharply and remained so high for so long during a President’s term.

Last August, with the number of judicial vacancies at 88, Constitutional Accountability Center cautioned that the slow rate of judicial confirmations could make 80 the new normal when it comes to the number of outstanding judicial vacancies.  Now, more than five-and-a-half months later, with the number of judicial vacancies at 85, it appears, unfortunately, that we were right.  And with 32 of the current 85 vacancies declared “judicial emergencies” by the federal judiciary, the Senate nonetheless left for winter recess with 19 nominations awaiting a floor vote—even as 18 of these nominees were either unopposed or received only token opposition at the committee level.  And with 18 future vacancies already announced and more sure to arise during the course of the year, the Senate confirmation process simply cannot afford to slow down in 2012.

So what can we reasonably expect the Senate to do about judicial nominations in an election year?   To answer this question, it is perhaps instructive to look back to 2004, when President George W. Bush was ending his first term in office, and the Senate was controlled by the Republican Party.  When the Senate returned to session in 2004, it had already confirmed 169 judges during President Bush’s first three years in office (compared to 126 for Obama), and it went on to confirm 37 more, for a total of 206 confirmations.  Moreover, Senate confirmations extended well into the summer and fall of 2004, with 21 judges being confirmed in June, one in July, three in September, and five as late as November.

Given the low number of confirmations to date, and the backlog of nominations the Senate has allowed to pool, the Senate has its work cut out for it in 2012.  The Senate would have to confirm 43 judges this year simply to reach the number of judges confirmed by this point in the Bush presidency. It would take 80 confirmations this year for President Obama to reach President Bush’s first term total.  And with 18 future vacancies already announced for this year, and more expected with deaths and retirement (there are around 38 new vacancies in an average year), the Senate must confirm a significant number of nominees merely to prevent the vacancy crisis from getting worse.

The solution is not rocket science. There are already 19 nominees awaiting only a vote on the Senate floor.  Most of them were approved out of the Judiciary Committee unanimously or by voice vote with token opposition, and many have been nominated for seats declared a judicial emergency.  These nominees should all be voted on as soon as the Senate returns.   Once this backlog has cleared, the Senate should then move forward to consider nominations as they are voted out of Committee through regular order.  And as the record from 2004 demonstrates, the Senate should continue confirming judges throughout the summer and even into the fall.

Over the last 36 months, the judicial confirmation process has slowed to a crawl as conservatives in the Senate, led by Minority Leader Mitch McConnell, have taken the unprecedented step of blocking confirmation votes on even the most uncontroversial judicial nominees.  Senate Majority Leader Harry Reid has only sparingly responded by dropping cloture petitions to force votes nonetheless.  With a judicial vacancy crisis on its hands to begin 2012, the Senate must find a way to get beyond this partisan squabbling and put the best interests of the judiciary and the nation first.

Note: Figures on the number of judicial vacancies, future vacancies, and judicial emergencies are available at http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx.