November 14, 2018

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. 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.
 
115th CONGRESS

November 14, 2018

Current Vacancies – 124
11 – courts of appeals
111 – district courts
2 – Court of International Trade

Total Nominations –158*  (4 for future vacs)
2 – Supreme Court
42 – courts of appeals
112 – district courts
  2 – Court of International Trade

Pending Nominations – 61
32 – pending in committee
29 – pending on Senate floor

Nominations Withdrawn – 5
1- circuit court
4 – district courts

Total Confirmations – 84
2 – Supreme Court
29 – courts of appeals
53 – district courts
0 – Court of International Trade

Judicial Emergencies – 63
9 – courts of appeals
54 – district courts

*Nominees who have been returned and renominated between or during sessions are only counted once.

115th Congress: Significant Events and Issues

First Session: 

Supreme Deliberations

When the 115th Congress convened on January 7, 2017, Senators returned to a chamber with two more Democrats (Tammy Duckworth from Illinois and Maggie Hassan from New Hampshire) but still controlled by Republicans (52 Republicans, 46 Democrats, and 2 Independents who caucus with the Democrats). A staggering 102 judicial vacancies on the Article III courts awaited their attention.

The event that transformed the landscape with regard to the judicial nomination and confirmation process was, of course, the election of a Republican president. With a united Republican government and the change in the filibuster rules enacted during the 113thCongress (see Historical Note below), Democrats retain some tools to slow down the process (by demanding cloture votes, for example), but they will be unable to prevent the confirmation of judicial nominees that they find objectionable.

While delays were to be expected at the beginning of a new administration as cabinet positions are filled and vetting teams are assembled, filling the Supreme Court vacancy that arose during the previous Congress on February 13, 2016, as a result of the sudden death of Justice Scalia, “trumped” any action on lower court nominees during the first three months of the session. 

As background, On March 16, 2016, 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. Even though there was widespread respect for Judge Garland among Democrats and Republicans alike, Majority Leader McConnell refused to take any action on the nominee, explaining in a short statement that “[t]he 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.” Rather than relenting, Republican organizations prepared a list of potential Supreme Court nominees that Donald Trump endorsed and released in September 2016 while on the campaign trail.

On February 1, 2017, President Trump nominated Judge Neil Gorsuch of the 10th Circuit to be Associate Justice of the Supreme Court. The Senate Judiciary Committee held his confirmation hearing on March 20 and 21 and the ABA Standing Committee on the Federal Judiciary, which had conducted its evaluation of the nominee with the cooperation of the White House, presented testimony on March 21 to explain its “Well-Qualified” rating of Judge Gorsuch.

As expected, there was a show-down over his confirmation. Unable to muster the 60 votes needed to overcome the Democrats’ filibuster, the Senate Majority Leader amended the filibuster rule to make it possible for Gorsuch and future Supreme Court nominees to be confirmed with only 51 votes. Senator McConnell used the same tactic employed by the Democrats in the 113th Congress when they were in the minority to overcome Republican filibusters of lower court nominees. At the time, the idea of extending the “Nuclear Option” to Supreme Court nominees was anathema to both parties, no matter how partisan the process had become.

On April 6, the Senate voted to change the filibuster rule for Supreme Court nominees, and on April 7, by a vote of 54-45, the Senate confirmed Neil Gorsuch to be the 113th Justice of the Supreme Court of the United States.

Lower Court Nominations.

On March 21, President Trump nominated, his first lower court nominee, Amul Thapar, to the Sixth Circuit Court of Appeals. He was confirmed on May 25. Since then, the president has submitted dozens of nominations in waves, with as many as a dozen announced at one time. The number of vacancies, which skyrocketed, from 45 to 103 during the 114th Congress, has continued to climb this Congress.  With the number of vacancies hovering around 140 since the end of last summer, the judiciary has been forced to conduct its business with over 15% of authorized Article III lower court judgeships are vacant.

Blue Slip Process Under Siege

he role of the blue slip in the nomination and confirmation process has become an issue of considerable debate this Congress. 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 chairman 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 chairman 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 chairman 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. (See also CRS report 7-5700.)

While different chairmen 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. 

Senator Grassley has come under intense pressure from his party’s leadership to alter or even abandon the blue slip process entirely.  At first, Senator Grassley’s spokesperson said that the Senator “will determine how to apply the blue-slip curtesy for federal nominees, as has always been the practice…. Over the years, chairmen have applied the curtesy differently, but the spirit of consultation has always remained.”   However, Mr. Grassley appeared to cave under pressure from leadership. (Last fall, Senate Majority leader McConnell told The New York Times that “the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.” )  In late November 2017, Senate 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. Since then, other circuit court nominees, including Michael Brennan (7th Circuit) and Ryan Bounds (9th Circuit). So far, Senator Grassley has adhered to his predecessor’s policy of requiring two positive blue slips prior to moving forward with district court nominations.

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.

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

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.  

115th 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 115th 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.