Judicial Vacancies

Overview

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. 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. (On March 19, 2015, the Judicial Conference submitted its request for 73 new judgeships and the conversion of nine temporary ones into permanent judgeships, but Congress has not acted on it.) 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 out of respect for the role of the judiciary in our government and our daily lives.

113th Congress: Filibuster Rule Change and 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 resulted in a flurry of confirmations during the remainder of the Congress, which significantly reduced the number of vacancies by the end of the Congress. Even though the filibuster rule change guaranteed that Democrats could invoke cloture and schedule floor votes, Republicans nonetheless made Senator Reid file a cloture motion on every nomination brought to the floor. The Filibuster rule change dramatically increased discord and partisanship and set the stage for what many have called “payback” time during this 114th Congress.  

For additional information about last Congress please click here.

Status of Judicial Vacancies, Nominations, and Confirmations as of September 18, 2016 

Note: These statistics and attached statistical charts will be updated every Friday afternoon. 
 
Current Vacancies – 90
1 – Supreme Court
12 – Courts of Appeals
75 – District Courts
2 – Court of International Trade
 
Total Nominations – 76*
1 – Supreme Court
9 – Courts of Appeals
62 – District Courts
4 – Court of International Trade
 
Pending Nominations - 54*
        29 – Pending in Committee
        25 – Pending on Senate floor (1 Court of Appeals; 2 Court of                               International Trade; 16 district courts)
 
Total Confirmations – 22
            18 – District Courts
            2 – Courts of Appeals
            2 – Court of International Trade   
 
Judicial Emergencies – 34
           5 – Courts of Appeals
           29 – District Courts
 
Does not include one vacancy and one nomination for the territorial District of Guam.

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) and a Senate Judiciary Committee now chaired by Senator Grassley, a non-lawyer, with Senator Leahy as ranking member.

Senator Grassley outlined his approach to judicial confirmations in his home state papers soon after the Midterm Elections. He said that the Senate Judiciary Committee “should not be a rubber stamp for the president.” He stated: “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.”

First Session Summary:

During the first three months of the session, 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. The lack of action and concern over the growing backlog of civil lawsuits 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, originally nominated in the 113th Congress (September 2014) to the District Court of the Southern District of Texas, was confirmed by a vote of 95-0. During the rest of the Session only nine additional district court judges were confirmed. On July 7, the Senate confirmed its first appellate court judge, Kara Fernandez Stoll, to the U.S. Court of Appeals for the Federal Circuit by a vote of 95-0. She was the only appellate court judge confirmed during the 1st Session.

Excessive delays followed by unanimous confirmation votes on these and other nominees confirmed during the 1st Session suggest that Senate leadership has decided to slow-walk the process for reasons that have nothing to do with the qualifications of the nominees.

In December 2015, ABA president Paulette Brown wrote Senate leaders urging confirmation of nominees pending on the floor prior to adjournment of the 1st Session. While the Senate confirmed only one additional nominee in December, Senate leaders did come to an agreement to not return pending nominees and to vote on five specified nominees early in the next session. 

In summary, there were 45 vacancies at the start the 1st Session and 66 vacancies at adjournment. During the Session, President Obama made 42 nominations (12 of whom were renominated from the previous Congress), and the Senate confirmed 11 nominees − 10 to the district courts and one to the Court of Appeals for the Federal Circuit.  

Second Session: Notable Events

Unexpected Supreme Court Vacancy

During the first two months of the 2nd Session, Senate leaders adhered to the agreement worked out at the end of the 1st Session, allowing up-or-down votes on five nominees, including Luis Felipe Restrepo to the Third Circuit, prior to the Presidents’ Day recess. All five were confirmed, four with resounding majorities or no “nea” votes, and one with significant opposition.

During the remainder of February, the Judiciary Committee continued to process nominees, holding one hearing and one executive session. The expectation that the Senate would continue to slowly process nominees – at least district court nominees – until the so-called “Thurmond Rule” was informally invoked during late summer or early fall and the process closed down in anticipation of the presidential elections in November. However, unexpected events have upended even this prospect.

On February 13, 2016, Justice Antonin Scalia died unexpectedly. Within hours, Senate Majority Leader McConnell issued a short statement that concluded by stating: “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

This unleashed a torrent of partisan debate and comments from pundits, academics, editorial boards, organizations, past government officials and other Members of Congress. Senator Grassley at first appeared to waver over how the Senate Judiciary Committee would proceed, but he quickly fell in step with the Majority Leader as evidenced by his letter that was cosigned by all of his Republican colleagues on the Committee and sent to the Majority Leader on February 15.  It stated in part: 

Given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy.  Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017. In response, Democrats on the Committee sent a joint letter urging Grassley to reconsider his position.

A few days later, an opinion piece in the Washington Post that was jointly signed by Senator Grassley and the Majority Leader further solidified their stance and advanced arguments that became talking points that Republicans have used consistently to justify their refusal to take any action on the Garland nomination during this Congress. Their opinion piece concludes by stating, “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.”  This is a statement clearly not supported by the U. S. Constitution.

 

President Obama Makes Supreme Court Nomination

Soon after Justice Scalia died, President Obama announced his intention to make a nomination and described the qualifications he was looking for in a nominee.

On March 16, President Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia to be associate justice of the U.S. Supreme Court. Judge Garland previously was confirmed to the DC Circuit Court on a vote of 76-23 in 1997 and has served as its Chief Judge since February 2013.

The ABA’s Standing Committee on the Federal Judiciary, which evaluates the professional qualifications of nominees to the Article III and Article IV federal courts at the request of the administration, released its rating and explanatory statement on Merrick Garland on June 21. The Standing Committee stated: “Merrick Garland is a preeminent member of the legal profession with outstanding legal ability and exceptional breadth of experience. He meets the very highest standards of integrity, professional competence and judicial temperament. It is the unanimous opinion of Standing Committee that Judge Garland is “Well Qualified” to serve as Associate Justice of the Supreme Court of the United States.”

 

Congressional Response

There is no doubt that Judge Garland commands the respect of Democratic and Republican senators alike. However, rather than engaging in debate over Garland’s qualifications to be an associate justice, Senate Republican leadership has successfully kept the discussion focused on why they do not intend to take action. For example, during executive business meetings on March 10 and March 17, rather than voting on lower court judicial nominees on the schedule, senators debated whether they had a duty − constitutional or otherwise — to act on the nomination and whether there was precedent for their stated position. 

While Senator Grassley and a handful of other Republican senators agreed to visit with the nominee, Senator Grassley made it clear before the meetings that he does not intend to hold hearings on Judge Garland’s nomination this year.  

 

Subsequent Activity on Lower Court Nominees  

Since the Garland nomination, the President has made 14 nominations to the lower Article III courts and the territorial District Court of Guam, bringing the total number of nominations made so far this Congress to 75.  

The Senate failed to act on any lower court nominees for almost two months following the death of Justice Scalia in February. The Senate Judiciary Committee finally started back to work on nominees on April 7, when it reported three nominees to the Senate by unanimous voice vote. Since then, the Committee has reported an additional 12 nominees to the Senate.

On April 11, the Senate acted on its sixth nominee of the session, confirming by unanimous vote the nomination of Waverly Crenshaw Jr. for a seat on the District Court for the Middle District of Tennessee. Judge Crenshaw waited nine months for his unanimous floor vote.

The Senate Majority Leader continued to drag out confirmation votes during the months leading up to the July recess. Only one nominee was confirmed in May, three in June, and one in July. Having confirmed only 22 nominees during this entire Congress, the Senate left town for seven weeks without voting on 19 nominees pending on the floor, 17 of whom received the unanimous approval of the Senate Judiciary Committee.    

Even though Republican ire persists over the rules change foisted on them when the Democrats were in control of the Senate, it does not explain McConnell’s insistence on slow-walking even the uncontroversial district court nominees supported by their home-state Republican senators. Specifically, eight nominees pending on the floor enjoy the home-state support of their two Republican senators, and an additional four have the support of both their Republican and Democratic senator.  All of these pending nominees were reported to the Senate by unanimous voice votes.

Some have invoked the Thurmond Rule, which is nothing more that a generalized belief that confirmations typically slow down in presidential election years as the election approaches, to explain the slowdown during the 2nd Session. However, confirmation activity in prior election years demonstrates that there is no pattern to when or how the Rule operates other than that it is invoked at the will of the Majority leader and Senate Judiciary Committee chair.

When the Senate reconvenes on September 6, there will be 87 vacancies to fill, possibly more. We will be back to a 10% vacancy rate on the federal bench. 

 

Required Action

Senators need to be reminded that their constituents suffer when the federal courts in their state cannot deliver timely justice. Upon returning from the summer recess in September, Majority Leader McConnell needs to promptly schedule votes on all nominees pending on the floor.

 

President Obama Makes Supreme Court Nomination

Soon after Justice Scalia died, President Obama announced his intention to make a nomination and described the qualifications he was looking for in a nominee.

On March 16, President Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit to be associate justice of the U.S. Supreme Court. Judge Garland previously was confirmed to the DC Circuit Court on a vote of 76-23 in 1997 and has served as chief judge since February 2013.

Additional Nominations

The President has continued to make nominations to the lower courts. In fact, he made eight nominations in March and 12 in April -- two to the courts of appeals and 12 to the district courts.

Congressional Response

There is no doubt that Judge Garland commands the respect of Democratic and Republican senators alike. However, rather than engaging in debate over Garland’s qualifications to be associate justice, Senate Republican leadership is continuing to keep the discussion focused on why they do not intend to take action. During the executive business meetings on March 10 and March 17, rather than voting on lower court judicial nominees on the schedule, senators debated whether they had a duty − constitutional or otherwise — to act on the nomination and whether there was precedent for their stated position. 

While a handful of Republican senators have agreed to visit with the nominee, Senator Grassley has reiterated that he does not intend to hold hearings on Judge Garland’s nomination this year.  

After no activity on nominees since the death of Justice Scalia on February 14, the Senate Judiciary Committee approved by voice vote three nominees on April 7 and one on April 14. On April 11, the Senate acted on its sixth nominee this session, confirming by unanimous vote the nomination of Waverly Crenshaw Jr. for a seat on the District Court for the Middle District of Tennessee. Judge Crenshaw waited nine months for his floor vote.

Key Points

  • The Administration and the Senate must make the prompt filing of federal judicial vacancies an ongoing priority. The political branches should resolve to work cooperatively and across the political aisle to make lasting progress in filling vacancies in a timely fashion. 
  • Persistently high numbers of judicial vacancies deprive the nation of a federal court system that is equipped to serve the people. This has real consequences for the financial well−being of businesses and the personal lives of litigants whose cases may only be heard by the federal courts−e.g. cases involving challenges to the constitutionality of a law, unfair business practices under federal antitrust laws, patent infringement, police brutality, employment discrimination, and bankruptcy.

Expediting Nominations

  • The Administration and Members of the Senate should work together to shorten the time between vacancy and nomination, especially for those vacancies classified "judicial emergencies." 
  • Senators should be prepared to identify potential nominees and to submit recommendations to the President as early as possible in the process.

Expediting Confirmations

  • The Senate Judiciary Committee should hold hearings on judicial nominees in a timely fashion.
  • The Senate should give every nominee an up-or-down vote within a reasonable time after the Senate Judiciary Committee reports the nomination. 

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. While not included in the chart, cloture also was filed on all judicial nominees who were confirmed during 2014 (2nd Session).   

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