Judicial Vacancies

Last Updated: 9/3/2019

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 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. 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.

Status of Judicial Vacancies, Nominations, and Confirmations

Note: These statistics and attached statistical charts will be updated every Friday afternoon.
 
116th CONGRESS

September 3, 2019

Current Vacancies – 103
0 – Supreme Court
4 – courts of appeals
97 – district courts
2 – Court of International Trade

Total Nominations – 98*
0 – Supreme Court
14 – courts of appeals
82 – district courts (Includes 1 nomination for V.I. future vacancy)
 2 – Court of International Trade

Pending Nominations – 36
10 – pending in committee
26 – pending on Senate floor

Withdrawn nominations - 1
1 - district courts

Total Confirmations – 61
0 – Supreme Court
13 – courts of appeals
46 – district courts
2 – Court of International Trade

Judicial Emergencies – 57
2 – courts of appeals
55 – district courts

*Note: There were 56 renominations - 54 from the 115th Congress and 2 from the 114th Congress.

116th Congress: Significant Events and Issues

The 116th Congress commenced with 133 vacancies to the lower federal courts, 12 for seats on the courts of appeals. During the first month of the new Congress, President Trump renominated 54 of his 69 nominees that were returned at the end of the 115th Congress and two Obama nominees that were returned at the end of the 114th Congress. The Senate Judiciary Committee decided to forego hearings on the renominations and voted in committee on a majority of the renominations during one executive committee meeting.

Blue Slip Process Under Siege

The role of the blue slip in the nomination and confirmation process has become an issue of considerable debate during the Trump Administration. This process is not spelled out in a Senate rule and is often characterized as an institutionalization of “senatorial courtesy” which can be traced back to the 65th Congress (1917-1918).

After a president nominates an individual for a U.S. circuit or district court judgeship, the chair of the Senate Judiciary Committee sends a blue-colored form to the senators representing the home state of the nominee. If a home state senator has no objection to a nominee, the blue slip is returned to the chair with a positive response. If, however, a home-state senator objects to a nominee, the blue slip is either withheld or returned with a negative response.

Since the use of blue slips is not codified or included in the committee’s rules, the chair of the Judiciary Committee has the discretion to determine the extent to which a home-state senator’s negative or withheld blue slip prevents a president’s judicial nominee from receiving a committee hearing.  A condensed summary of the blue slip process that each chair from 1989 to 2015 (Biden, Hatch, Leahy and Specter) followed is available here. 

While different chairs have used the blue slip in different ways, during all of the Obama presidency, Senator Leahy insisted that two positive blue slips from the home-state senators were required prior to committee action. This enabled the Republican minority to continue to exert some influence over the president’s selection of nominees.  Since there was little reason to nominate someone who would languish in committee due to inaction, there was a strong incentive for the administration to continue to engage in the practice of prenomination consultation with senators from the opposite party, even after the nuclear option was invoked. 

During the 115th Congress, after President Trump took office, Senate Judiciary Committee Chairman, Senator Grassley, came under intense pressure from his party's leadership to abandon the blue slip process entirely. In late November 2017, Senator Grassley said that as long as there was consultation with the home-state senators, he would decide how he would handle blue slips for circuit nominees on a case-by-case basis. Senator Grassley, however, failed to explain what kind of consultation would qualify. The first nominee to have a hearing without the return of both blue-slips was David Stras, nominated to the 8th Circuit. During the rest of the Congress, several other circuit court nominees who did not have the support of one or both home state senators, including Michael Brennan (7th Circuit) and Ryan Bounds (9th Circuit), also had hearings. 

Senator Graham, who took over the chairmanship of the Senate Judiciary Committee in the 116th Congress, is also ignoring the blue slip tradition for circuit court nominees. He is holding hearings for circuit court nominees who are opposed by both home state senators. For example, hearings were scheduled for two 2nd Circuit nominees and three 9th Circuit nominees even though both of their home state senators declined to return blue slips. 

Senate Rule Change to Reduce Debate on Judicial Nominees

The current rules of debate on judicial nominees and executive branch officials who are subject to nomination and confirmation allows for up to 30 hours of floor debate prior to the confirmation vote. The Republicans have been considering changing this rule since the end of the last Congress. Senate Majority Leader McConnell proposed a rule change in March 2019 that would limit debate on district court nominees and sub-cabinet executive branch nominees to two hours. While a Senate rule change normally requires 67 votes to pass, Senator McConnell resorted to the use of the "Nuclear Option", thereby changing the debate rule. 

Additional Judgeships

In March 2019, the Judicial Conference of the United States submitted its biennial recommendation regarding the need for additional Article III judgeships. It is recommending the creation of five new circuit court judgeships (all for the 9th Circuit), 65 permanent district court judgeships, and the conversion of eight existing temporary district court judgeships into permanent judgeships.

Historical Note: Filibuster Rule Change and Reprisal.

Halfway through the 113th Congress, then-Majority Leader Harry Reid invoked the “nuclear option” to enable the Democrats to change the Senate’s Standing Rule regarding filibusters by a simple majority vote rather than the 67 votes (i.e., a  supermajority vote) that is normally required to change a Standing Rule. As a result of this successful procedural move, the Senate adopted a new filibuster rule that 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. Even though the filibuster rule change guaranteed that Democrats could invoke cloture and schedule floor votes, Republicans struck back by making Senator Reid file a cloture motion on every nomination brought to the floor, a tactic aimed at tying up valuable floor time. Nonetheless, the filibuster rule change resulted in a flurry of judicial confirmations, which significantly reduced the number of vacancies by the end of the Congress. It also dramatically increased discord and partisanship and set the stage for what many have called “payback” time during this 114th Congress.

In the 115th Congress, prior to voting on Neil Gorsuch for Associate Justice of the Supreme Court of the United States, Senate Majority Leader McConnell used the same tactic to extend the new Senate filibuster rule to Supreme Court nominees. 

Please click here for additional information about the nomination and confirmation process during prior Congresses.

Key Points

  • The Administration and the Senate should promptly fill federal judicial vacancies. 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.
  • ABA Policies on Judicial Vacancies are accessible here

116th 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.

Historical Charts

Judicial Vacancies and Confirmations by Month under the Trump Administration.
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-115th Congress (1993-2017). 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.