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. In districts struggling under excessive caseloads and too few judges, vacancies make it impossible for the remaining judges to keep up with the workload. This has real consequences for communities and businesses because short-handed courts have no choice but to delay civil trial dockets due to the Speedy Trial Act. In these jurisdictions, persistent vacancies increase the length of time that litigants and businesses wait for their day in court, create pressures that “robotize” justice, and increase case backlogs that will perpetuate delays for years to come. These pressures, if left unchecked, inevitably will alter the delivery and quality of justice and erode public confidence in our federal judicial system.  

To achieve a significant and lasting reduction in the vacancy rate, the Administration and the Senate must make the prompt filing of federal judicial vacancies an ongoing priority, and the political branches must refrain from delaying votes on nominees for reasons not associated with their qualifications and resolve to work cooperatively and across the political aisle to give each nominee an up or down vote within a reasonable time after the Senate Judiciary Committee reports the nominee.

While increasing the pace of confirmations is essential to reducing the vacancy rate, given the high rate of attrition, it nonetheless is only one part of the solution; lasting progress also requires a more timely nomination process. A constant flow of nominees in the pipeline keeps the process moving and creates additional incentive for the Senate to schedule prompt votes. The White House and Members of the Senate need to make a concerted effort to work together to shorten the time between vacancy and nomination, especially for those vacancies classified judicial emergencies. Because of the deference traditionally given to senators with regard to filling district court vacancies, senators should be prepared to identify potential nominees and to submit recommendations to the President as early as possible after a future district court vacancy in the state is announced. 

Status of Judicial Vacancies, Nominations, and Confirmations as of August 5, 2014 


Current Vacancies – 57
  8 – Courts of Appeals
48 – District Courts
  1 – Court of International Trade

Total Nominations – 136
24 – Courts of Appeals
110 – District Courts
  2 – Court of International Trade

Pending Nominations – 27
           19 – Pending in Committee 
             8 – Pending on Senate Floor (1 Ct. App.; 7 Dist. Ct.)

Nominations Withdrawn – 2
  1 – Courts of Appeals 
  1 – District Courts

Nominations Returned and Not Renominated 2nd Session – 1
            1- District Court

Total Confirmations – 106
 22  – Courts of Appeals
 82 – District Courts
   2 – Court of International Trade

Judicial Emergencies – 19
  4 – Courts of Appeals
15 – District Courts


Significant Events and Issues

Vacancies at Start of 113th Congress

On January 3, 2013, the day that the 112th Congress adjourned  sine die and the 113th Congress convened, there were 77 vacancies on Article III courts. President Obama immediately renominated the 33 nominees pending at adjournment, including two who had been successfully filibustered and 11 who were waiting for a final floor vote. 

1st Session Begins with Procedural Reforms and Modest Progress 

On January 24, 2013, Senate leaders agreed to a modest packet of reforms to Senate procedures and rules, including limiting the time for post-cloture debate on district court nominations to two hours for the duration of the 113th Congress. Senator Reid said he hoped this modest change would discourage senators from filibustering district court nominees, a record number of whom were filibustered during the 112th Congress. The two leaders also agreed that senators who wish to object or threaten a filibuster must actually come to the floor to do so, and that debate time post-cloture must be used for debate and not as a tactic to slow down business. 

This marked the second time during the Obama presidency that the Majority and Minority Leaders agreed to modest procedural changes: at the start of the 112th Congress, they agreed to restrict the use of secret holds, long considered a senatorial privilege, by requiring any senator who places a holds to disclose his or her identity within two days.

The first judicial nominees of the 113th Congress were confirmed in mid-February. William Kayatta, who had waited 10 months for a floor vote, was confirmed to a seat on the First Circuit, by a vote of 88-12; Robert Bacharach, whose nomination had been filibustered last Congress, was confirmed by a 93-0 vote to the Tenth Circuit; and Richard Tarranto, who had waited for a floor vote for a year, was confirmed to the Federal Circuit by a vote of 91-0.  

Skirmishes over the DC Circuit

At the start of the 113th Congress, President Obama renominated Caitlin Halligan and Sri Srinvasan to two of the four vacant seats on the D.C Circuit. During the 112th Congress, Halligan’s nomination had been successfully filibustered and Srinvasan’s nomination received no action for six months to accommodate Senate Judiciary Committee Republicans who wanted more information about his activities at the Department of Justice.  

The comity enjoyed during the first few months of the 113th Congress was not sufficient to overcome Republican opposition to Caitlin Halligan. For the second time in two years, her nomination was successfully fillibustered, this time on a cloture vote of 51- 41. Halligan withdrew her nomination on March 25, 2013 a few weeks after the vote. Sri Srinivasan fared much better. Even though Senator Reid had to force a floor vote by filing a  cloture petition, Sri Srinivasan was confirmed to the DC Circuit by a vote of 97-0 on May 23, 2013. 

To discourage any further nominations to the DC Circuit by President Obama, Senator Grassley (R-IA) introduced  S. 699, the Court Efficiency Act of 2013, which would reduce from 11 to 8 the number of authorized judgeships on the court and create two new judgeships in other circuits. It would take effect immediately upon enactment. Upon introduction, Senator Grassley stated, “It is no secret that the D.C. Circuit is the least-busy, least-worked appellate court in the nation.” His assessment of the needs of the court was based on his interpretation of statistics maintained by the Judicial Conference.  

Opponents of Grassley’s bill point out that the statistics he relies on do not take into account the complexity of the cases before the DC Circuit. As retired DC Circuit Court Judge Pat Wald stated in an op-ed in the Washington Post, the DC Circuit has exclusive jurisdiction over many vital national security challenges and hears the bulk of appeals from the major regulatory agencies of the federal government, including clear air and water regulations, nuclear plant safety, health care reform, insider trading and more. It resolves more constitutional questions involving separation of powers and executive prerogatives than any other court of appeals, and is often the “breeding ground” for Supreme Court nominees and referred to as the second most important court in the nation.

Neither the Judicial Conference nor the DC Circuit has recommended this reduction in judgeships for the DC Circuit. In 2009, the Judicial Conference, which utilizes a multi-step process for developing comprehensive recommendations for terminating and authorizing judgeships, recommended elimination of the DC Circuit’s 12th judgeship. Congress readily concurred and passed legislation that offset the reduction on the DC Circuit by adding one authorized judgeship to the Ninth Circuit Court of Appeals.  

On June 4, President Obama exercised his constitutional duty to make nominations to the federal bench by submitting to the Senate the names of three nominees to the DC Circuit - Patricia Ann Millett, Cornelia T. L. Pillard, and Robert L. Wilkins. Republicans immediately and vociferously denounced the action, accusing the President of “court-packing” and suggesting that the President’s motive to fill the open seats was strictly political.

The Senate Judiciary Committee reported all three nominees to the Senate on party-line votes of 10-8. However, during the fall, floor consideration of the nomination of Patricia Ann Millett was blocked by a cloture vote of 55-38-3; the nomination of T. L. Pillard by a cloture vote of 56-41; and the nomination of Robert Wilkins by a cloture vote of 55-43.

Majority Leader Invokes the “Nuclear Option” to Change the Filibuster Rule

On November 21, 2013, Majority Leader Reid invoked the “nuclear option” and, changed the Senate rules regarding filibusters by a series of procedural moves that  changed a standing Senate Rule by simple majority vote rather than  the normally required supermajority of  67 votes. Members of both parties have threatened to invoke the nuclear option for almost a decade but had always worked out some accord to avert it at the last minute. For example, in 2005, then-Majority Leader Bill Frist, threatened to invoke it after Democrats filibustered ten of President Bush’s appellate court nominees, including Miguel Estrada. The “Gang of 14”—seven senators from each party reached an accord over the nominees and an understanding was reached to limit filibusters to extraordinary circumstances. In the intervening years, both parties have violated the agreement in one way or another and contributed to increasing discord over the nomination and confirmation process that culminated in Senator Reid pulling the trigger. Reid claimed it was necessary because of widespread Republican abuse of the filibuster, an assertion he defends by citing a June 2013 Congressional Research Service report that concluded that 82 of the 168 filibusters of nominations in the history of the United States have been waged by Republicans under President Obama. In addition, the report stated that 20 of the 23 filibusters of district court nominees to occur in the history of our country were launched against Obama’s district court nominees.

The Rule change guts the power 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 applies to all future Congresses and presidents barring a future rules change by the Senate. Shortly after the rules change, the Senate reconsidered the nominations of Millet, Pillard, and Wilkins, the three DC Circuit nominees who had been filibustered last session. In a symbolic gesture, all three were filibustered again, but the new Rule guaranteed successful cloture votes, and all three went on to be confirmed -- Millet by a vote of 56-38; Pillard by a vote of 51-44; and Wilkins by a vote of 55-43.

The Senate Rule change in no way assures the prompt filling of judicial vacancies; there still are a number of ways to prevent a particular nominee for getting a floor vote or delaying the nomination and confirmation process, including not forwarding  names of candidates for nomination to district court vacancies, refusing or delaying the return of blue slips  (e.g., consider the delay by the two Republican senators in returning blue slips for 5 Arizona nominees, or the  blocking of blue slips for  6th Circuit nominees by two Democratic senators in 2002), blocking executive committee action by preventing a quorum from being present; placing a series of holds on a nominee, and of course, using up precious Senate time by forcing a cloture vote that in turns allows for 30 hours of debate on all but district court nominees. Because of the availability of all these additional tactics, it will take time before we know how the change will affect the overall vacancy rate on Article III courts. 

Following invocation of the Nuclear Option, Republicans closed down the confirmation process for the rest of the session by refusing to attend executive business meetings or vote on consensus nominees previously scheduled for a floor vote. In an act of further protest, Republicans returned 55 of the 56 pending nominees at the close of the 1st Session. The Wilkens nomination was not returned because a cloture petition was pending on his nomination at the time of adjournment.

 

2nd Session of Congress 

On the first day of the 2nd Session, there were 95 vacancies and President Obama renominated 54 of the 55 returned nominees, nine of whom were waiting for a floor vote when the 1st Session adjourned. (The White House did not renominate Judge William Thomas to a district court seat because of opposition from Senator Marco Rubio (R-FL). If confirmed, he would have been the first openly gay Black federal judge).

While it is too early to asses the long-term effect of the filibuster rule change on the vacancy rate or pace of confirmations, Republicans have signaled that they intend to continue to set up roadblocks to timely confirmations by forcing the majority leader to file cloture petitions. Some critics also are accusing Republicans of not providing the White House with names of candidates for nomination to district court seats or purposely delaying submission of their blue slips. The situation may worsen as the midterm elections approach. 

As of August 5, 19 nominations are pending before the Senate Judiciary Committee; 8 are pending on the Senate floor waiting for a floor vote; and the Senate has confirmed 106 nominees, 45 during the 1st Session and 61 during the 2nd Session. Because Republicans have refused unanimous consent to schedule confirmation votes, the Majority Leader has had to invoke cloture on every nominee confirmed to date this session.

Need for Additional Authorized Judgeships

To further add to the strain on the federal judiciary, new judgeships are desperately needed, especially in the southwest border courts, where caseloads are crippling.

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 Administrative Office of the U.S. Courts.

At the request of the Judicial Conference of the United States, Senator Chris Coons (D-DE) and Judiciary Chairman Patrick J. Leahy (D-VT) introduced S. 1385, which would create 70 permanent and 21 temporary judgeships at both the district and appellate court levels. The bill also would convert eight existing temporary district court judgeships into permanent positions. The bill is based on recommendations made in April by the Judicial Conference, which stated in a letter to Leahy that increasing caseloads have “created enormous difficulties” in courts around the country, while singling out five district courts in Arizona, California, Delaware, and Texas as “struggling with extraordinarily high and sustained workloads." Senator Coons, Chair of the Senate Judiciary Subcommittee on Bankruptcy and the Courts, held a hearing before his subcommittee on September 10,2013 to evaluate the proposal. The ABA, which adopted policy in August supporting the Judicial Conference’s recommendation for additional authorized judgeships, testified at the hearing. Other measures, including immigration and appropriations legislation, also have included provisions to authorize additional judgeships.

S. 744, the Border Security Economic Opportunity and Immigration Modernization Act, which passed the Senate June 27, 2013, would provide additional permanent district court judgeships to the Arizona, California, and Texas to deal with the increase in judicial workload. The House, however, is not likely to act on the omnibus immigration bill. 

Both S. 1371 and H.R. 2786, the Senate and House Financial Services and General Government FY 2014 appropriations bills that were reported out of committee, contained provisions to create additional judgeships. S. 1371 would have extended nine temporary district court judgeships for one year, authorized several additional judgeships, and converted one temporary judgeship to a permanent judgeship in New Mexico. The House bill proposed only extending the temporary judgeships. The consolidated appropriations bill for FY 2014, signed into law as P.L. 113-76, adopted the House bill’s recommendation and extended nine temporary judgeships in eight district courts for one year.  

113th 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, and deaths and other unanticipated circumstances.

Vacancies for Which There are No Nominees. This chart, prepared by the Alliance for Justice (AFJ), identifies whether either of the state’s senators has forwarded to the Administration nomination recommendations for vacant seats on district courts within the senator’s state. AFJ compiles this information from news reports and other public sources. The ABA has not verified its accuracy.

Confirmations during the 113th 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-112th Congress (1993-2012). 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-Present. This ABA chart is a compilation of information available on the U.S. Senate’s website.

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 substantial and lasting progress in filling vacancies. 
  • Persistently high numbers of judicial vacancies slows the wheels of justice, erodes public confidence, and deprives 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." The Administration should redouble its efforts to identify nominees for circuit court positions, and home-state senators should do the same with regard to recommending potential nominees for district court vacancies.
  • Senators should be prepared to identify potential and to submit recommendations the President as early as possible in the process. Senators new to the process should give consideration to establishing a screening process in advance of need and should initiate the process as soon as a future district court vacancy in the Senator's state is announced. 


Expediting Confirmations

  • The Senate should give every nominee an up-or-down vote within a reasonable time after the Senate Judiciary Committee reports the nomination. 
  • To avoid unnecessary delay, the Senate should schedule votes seriatim on all pending nominees for whom there is strong bipartisan support and who were reported by the Senate Judiciary Committee with little or no opposition. On the other hand, legitimate concerns over a nominee's qualifications require full debate and understandably will delay a floor vote for a reasonable amount of time. 

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