Judicial Vacancies


Our nation is disadvantaged when our federal judiciary does not have sufficient judges to hear cases and resolve disputes in a thorough and timely fashion. Over 400,000 cases are filed in federal district courts and courts of appeals each year. These cases include discrimination and civil rights claims, criminal prosecutions, environmental and consumer protection litigation, challenges to government power, and lawsuits to hold corporations accountable for wrongdoing. When there are insufficient judges to handle the workload, resolution of these important kinds of cases is delayed. Persistent vacancies in a busy court increase the length of time that litigants and businesses wait for their day in court, create pressures to “robotize” justice, and increase case backlogs that perpetuate delays in the future. These pressures, if left unchecked, inevitably will alter the delivery and quality of justice and erode public confidence in our federal judicial system.

The president and the Senate have a constitutional responsibility to nominate and confirm judges to the Article III courts. Despite the political nature of the process, this shared duty needs to be carried out with bipartisan cooperation between the branches and across political lines out of respect for the role of the judiciary in our government and our daily lives.

113th Congress Recap

Halfway through the 113th Congress, then-Majority Leader Harry Reid invoked the “nuclear option” to change the Senate Rules regarding filibusters by simple majority vote rather than the normally required supermajority of 67 votes. The rule change gutted the threat of the filibuster by lowering the threshold for cloture on all executive branch and judicial nominees except for Supreme Court nominees from 60 votes to a simple majority. The change to the filibuster rule set the stage for a dramatic reduction in the number of vacancies by the end of the Congress. 

During the 113th Congress, President Obama made 152 nominations and the Senate confirmed 134 judges, two-thirds of whom were confirmed during the 2nd Session. The 2nd Session of the 113th Congress started with 92 vacancies and adjourned with 41, reducing the vacancy rate to less than 5%. Fourteen nominations were returned to the President upon adjournment sine die. For additional information about last Congress please click here.

Status of Judicial Vacancies, Nominations, and Confirmations as of February 5, 2016 

Current Vacancies – 76
9 – Courts of Appeals
63 – District Courts
4 – Court of International Trade

Total Nominations – 49
5 – Courts of Appeals
40 – District Courts
4 – Court of International Trade

Pending Nominations - 35
        21 - Pending in Committee
        14 - Pending on Senate floor (1 Court of International Trade;                 13 district courts)

Total Confirmations – 14
            12 – District Courts
            2 – Courts of Appeals    

Judicial Emergencies – 32
           5 – Courts of Appeals
           27 – District Courts

Significant Events and Issues

Reorganization of the Senate Judiciary Committee

When the 114th Congress convened on January 6, Senators returned to a chamber now controlled by Republicans (54 Republicans, 44 Democrats, and 2 Independents who caucus with the Democrats). Leadership positions flipped, with Senator Mitch McConnell now Majority Leader and Senator Harry Reid, Minority Leader. Likewise, Senator Grassley, a non-lawyer, is now chair of the Judiciary Committee and Senator Leahy is ranking member. The Senate reorganization also changed the ratio of seats on the Committee from 10 Democrats and 8 Republicans to 11 Republicans and 9 Democrats. Republicans added three new members to their committee roster − Dave Vitter (LA), and newly elected members, David Perdue (GA) and Thom Tillis (NC), neither of whom are lawyers. Democrats lost one member − Mazie Hirono (HI).  

Vacancies at Start of 114th Congress

On the first day of the session, there were 45 vacancies on the bench. President Obama promptly renominated 12 of the 14 nominees that were returned at the end of the last Congress, but two of those are for future vacancies. 

The low vacancy rate does not paint a complete picture of the status of the nomination and confirmation process and should not lull any into a state of complacency. For example, there still are a significant number of long-standing district court vacancies in Pennsylvania and Texas. The district courts in Pennsylvania (Third Circuit) and Texas (Fifth Circuit) have a total of 11 vacancies and only three have nominees pending. The two circuits also have three circuit court vacancies.

Senator Grassley outlined his approach to judicial confirmations in his home state papers soon after the Midterm Elections. He stated that the Senate Judiciary Committee “should not be a rubber stamp for the president” when it comes to nominations, and he expressed the importance of quality judges saying:

“Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence. Judges are to decide cases and controversies —not establish public policy or make law.”

Senate Acts Slowly on Nominees

Neither the Senate Judiciary Committee nor the Senate has acted expeditiously to confirm pending nominees. In fact, during the first three months of this Congress, the Senate failed to hold any confirmation votes, even though five of the six pending nominees were slated to fill judicial vacancies in Utah and Texas, states with two Republican Senators, three of which also happen to be Judiciary Committee members. While reorganization of the Senate and the confirmation of Attorney General Lynch may have contributed to initial delays in the confirmation process, it appears that leadership has decided to slow-walk the process for reasons that have nothing to do with the qualifications of the nominees.

As a result, the number of vacancies and courts with judicial emergencies are increasing and the backlog of civil lawsuits keeps growing. Concern over the growing backlog prompted the Wall Street Journal to run a cover story about it on April 7, 2015.

The first confirmation occurred on April 13, when Alfred Bennett, renominated to the District Court of the Southern District of Texas at the start of this Congress, was confirmed. Since then only 11 additional judges have been confirmed to the district courts. On July 7, six months after the start of the Congress and almost seven weeks since its last confirmations, the Senate confirmed its first confirmation to the courts of appeals, Kara Fernandez Stoll, who was nominated to the U.S. Court of Appeals for the Federal Circuit. Kara Fernandez Stoll is the first African-American woman to sit on the Court of Appeals for the Federal Circuit.

114th Congress Charts

Senate Action on Current Nominees. This ABA chart provides the status of each current nominee's progress through each step of the confirmation process. 

Judicial Emergencies. This chart, prepared by the Administrative Office of the U.S. Courts (AO), lists the vacancies it considers to be “judicial emergencies,” based on the length of time the seat has been vacant and the caseload of the court. 

Future Vacancies. This AO chart lists the Article III judges who have provided advance notice of the date on which they intend to leave active service. The Judicial Conference of the Unites States encourages -- but does not require -- district and circuit court judges to provide 12 months advance notice. In addition to those announced in advance, vacancies will arise during the course of the year as a result of judicial elevations, resignations, deaths and other unanticipated circumstances.

Vacancies Without Nominees. This chart, prepared by the Alliance for Justice (AFJ), tracks every current and announced future judicial vacancy for which there is no nominee. While it notes the controlling senator(s) for each vacancy, it does not state whether the senators have submitted to the president their recommendations for nomination to district court vacancies. The ABA has not verified its accuracy.

Confirmations during the 114th Congress by the Month. This ABA chart provides a visual snapshot of the pace of confirmations.

Historical Charts 

Judicial Vacancies at the Beginning of each Month, January 2009-Present.This chart is a compilation of the number of vacancies in existence at the beginning of each month, as reported by the Administrative Office of the U.S. Courts.

Snapshot of the Status of Judicial Vacancies, Nominations, and Confirmations from the 103rd-113th Congress (1993-2014). This ABA chart offers some historical perspective by chronicling the state of affairs at the start and end of the past 20 sessions of Congress.

Cloture Votes on Judicial Nominees during the Obama Administration, 2010-2014. This ABA chart is a compilation of information available on the U.S. Senate’s website.

Need for Additional Authorized Judgeships

To further add to the strain on the federal judiciary, dozens of new judgeships are needed, according to the Administrative Office of the U.S. Courts (AO), especially in the Delaware and the border courts where caseloads are crippling. On March 19, 2015, the Judicial Conference submitted its request for 73 new judgeships and the conversion of nine temporary ones into permanent judgeships. 

Congress has not passed a so-called “omnibus” bill to create new judgeships since 1990, when lawmakers authorized 85 new positions, including 80 permanent and five temporary judicial seats. Since then, Congress has occasionally approved smaller batches of new judgeships, but the overall number of authorized positions has increased by just 32, according to data from the AO. In addition, the consolidated FY 2015 appropriations bill signed into law, P.L. 113-235, extended nine temporary judgeships in eight district courts for one year. The Judicial Conference is asking for these to be extended again if they are not made permanent. 

The Congressional Accountability Office is undertaking a review of the formula to determine weighted caseloads that is used by the Judicial Conference to help determine the need for additional judgeships. This is an important development since some senators have expressed no confidence in the current formula. If this is resolved and confidence restored, Congress may be more willing to consider creating new judgeships for some district or circuit courts, although it is just as likely that Congress might first explore the feasibility of shifting judgeships from one court to another.