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Federal courts vacancy total dips below 80, for now

May 1, 2012

As readers of this blog know, the ongoing judicial vacancy crisis in our federal courts system has been characterized by a vacancy total that has exceeded 80 for nearly three years. As a result of a deal forged in the Senate after Majority Leader Harry Reid threatened to invoke cloture on 17 pending nominees, that number recently dipped below 80 to 79 for the first time in over 1,000 days (for those counting, there were a total of 1,029 straight days of more than 80 vacancies).

While this is good news, it is certainly no cause for celebration. By this point in a president’s firm term, vacancies are typically well below the total that they entered office with. At this point in the first terms of President Clinton and Bush, vacancies totaled 59 and 48 respectively; down significantly from the 109 and 80 that they respectively faced upon entering office. In contrast, partisan obstruction in the Senate has left President Obama with 24 more vacancies than he entered office with. And while 79 vacancies is less than 80, it still represents an unacceptably high total number of vacancies and a vacancy rate of nearly 10 percent of the federal judiciary, in a time of expanding caseloads. The vacancy crisis is far from over.

Moreover, if confirmations do not continue, the vacancy rate will climb past 80 again in the very near future.  Even putting aside the possibility of unexpected vacancies due to death and retirement, the vacancy rate will increase by six in the next two months as judges who have already announced their plans take senior status. With the presidential election only months away and the Republicans still looking for away to get back at President Obama for his recess appointments earlier in the year, some conservative senators have even considered the idea of shutting down the confirmation process entirely until after the election. Given the still raging vacancy crisis on the federal bench, this is the last thing that the country needs.