Increase in Judicial Vacancies across Nation, Attributed to Republican Obstruction, Delays Justice

Sunday, October 16, 2016
(photo: Jim Arbogast, Getty Images)

By Matthew Renda, Courthouse News Service


(CN) - Sherman is a small town of roughly 35,000 situated on the dusty stretched-out tracts of the northern part of Texas, just south of the Oklahoma border.


In the county jail, as many as 200 criminal defendants who have already pleaded guilty are milling about behind bars awaiting sentences. They have little access to the work or educational facilities available at the federal facilities they'll head to once their sentencing hearings are finally processed.


So why the wait?


The federal court in Sherman has a judicial vacancy that is hampering its ability to faithfully administer justice to the more than 2 million people it serves, according to a recent study (pdf)  published by New York University's Brennan Center for Justice. The vacancy means there is only one resident judge who hears cases, while the slack is picked up by two other judges who travel more than 350 miles to the federal courthouse in Sherman.


"It's not fair to [the inmates] and adds a great deal of unnecessary cost by having to house them for so long in county jail holding facilities," U.S. District Chief Judge Leonard Davis, of the Eastern District of Texas, told the authors of the report.


The difficulties in Sherman extend to civil cases as well, with lawyers fretting that the complexities of their cases don't get their due diligence because judges are overextended.


Ironically, Davis retired soon after giving that interview to the authors of the study, and the Eastern District continues to be addled by a judge shortage.


The problem, according to Alicia Bannon, senior law counsel at New York University's Brennan Center for Justice and author of the aforementioned study, is that this urgent lack of federal judges is not unique to the Eastern District of Texas.


Instead, unfilled judicial vacancies at the district court level are occurring across the nation at an unprecedented level, mainly due to obstruction of the Republican-led Senate which has prioritized non-cooperation with President Barack Obama over the efficient administration of justice.


"We are seeing delays across the board when it comes to hearing cases and judges are not able to do their jobs," said Bannon. "People and businesses all around the county are forced to wait sometimes years for their cases to be heard."


She added, "In many of these cases justice delayed is justice denied."


A recent report (pdf) by the Congressional Research Service shows that vacancies have increased by 83 percent since President Barack Obama first took office in 2009, a particularly stark increase given that vacancies decreased during the administrations of the two previous presidents — Bill Clinton and George W. Bush.


At present, Congress has authorized 673 judgeships in the 91 judicial districts that comprise federal court at the district level. Of those, there are 75 vacancies - 11 percent - with six more federal judges indicating they intend to step down before Obama leaves office in January, according to the report.


As of September 1, 47 of the 91 judgeships have at least one vacancy. This means more than half of the district courts in the United States have an incomplete roster of judges, the report states.


What is the cause for the unprecedented level of vacancies? According to Bannon, the cause is simple.


"I think the biggest issue is Senate obstruction," she said. "The Senate is not moving in a timely fashion, holding hearings on judicial nominees and giving them up or down votes."


The problem has existed since Obama assumed office in January 2009. But it's gotten worse since the Republicans took the Senate in the 2014 midterm election, Bannon said.


Of the 75 vacancies in federal courts, 24 have a nominee pending before the Senate Judiciary Committee, presided over by Republican Sen. Chuck Grassley. More than half of the vacancies have been open for more than a year, and a quarter of them have been open for more than two years.


The longest vacant judgeship has been open since 2005. That vacancy has a nominee pending before the Senate Judiciary Committee, which has elected not to move on the appointment.


Bannon is not alone in her frustration with the Senate's dilatory approach to nominations.


Linda Klein, president of the American Bar Association, wrote a pointed letter addressed to Senate Majority Leader Mitch McConnell, R-Kentucky, and Minority Leader Harry Reid, D-Nevada, saying the "long-standing vacancies on courts with high caseloads create strains that inevitably will reduce the quality of our justice system and, as importantly, deprive litigants of the opportunity to resolve their civil disputes in a timely matter."


Klein added, "This has real consequences for the financial well-being of businesses and for individuals who have to put their businesses and personal lives on hold while waiting for their day in court."


Bannon said that businesses often have huge stakes in the outcomes of the bevy of cases that are being delayed because of an inordinate caseload for judges at the district level.


"In some cases, it impacts the court's ability to fairly hear a case," she said. "Witnesses die, evidence goes stale and a delay can mean the difference in hearing a case or not."


However, many political commentators remain skeptical that the Senate will move to address the issue in October. Some feel the Republicans are biding their time, hoping a victory by Donald Trump in his contest against Hillary Clinton means he'll scrap Obama's nominees and replace them with judges more oriented to conservative legal principles.


This tactic is without precedent in modern times.


The American Bar Association pointed out that Congress appointed 10 federal judges in October of Ronald Reagan's final year in the Oval Office, along with four for Bill Clinton and 10 of George W. Bush's picks.


Furthermore, judicial vacancies dropped significantly during the terms of Bush and Clinton, according to the Congressional Research Service Report.


Under Bush, vacancies decreased from 58 to 41, a 29 percent decrease. Under Clinton the numbers are similar, with vacancies dropping from 93 to 58, a 38 percent decline.


The solutions to the problem prove elusive unless leaders in the government abandon what appears to be a politically motivated preference for stalemate.


"This is one example of the broader trend of government dysfunction," Bannon said.


Bannon notes that Obama's appointees are not necessarily all progressive liberals, as exemplified by the fact that when votes are finally taken they've often been unanimous approvals.


The problem has little to do with the qualifications of the judges who have been nominated or the political leanings of those judges, and more to do with a breakdown of the collegiality in the Senate itself.


Meanwhile, the problem has grown so severe that the Administrative Office of U.S. Courts has announced that 27 of the 75 vacancies, or 32 percent, represent judicial emergencies.


"Trial court judges do the bulk of the work in the federal court system, and litigants should not have to suffer the consequences of inaction over judicial vacancies," Klein said in her letter to the senators.


Time will tell if they are listening.


To Learn More:

Republican Senate Stalls Confirmation of Judges…Slowest Rate in 62 Years (by Steve Straehley, AllGov)

Senate Republicans On Track to Confirm Fewest Judges in 46 Years (by Noel Brinkerhoff and Steve Straehley, AllGov)

Arizona Declares Judicial Emergency due to Shortage of Judges (by Noel Brinkerhoff, AllGov)


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