September 24, 2012 Articles

Confirming Federal Judges: Perspectives, Rancor, and Potential Reform

The judiciary has 42 spots that have no prospect of being filled in the short term.

By Stephen D. Feldman

As of July 16, 2012, the federal judiciary had 76 vacancies. Administrative Office of the U.S. Courts, Judicial Vacancies. Only 34 nominations are pending for these vacancies, leaving 42 spots in the judiciary that have no prospect, at least in the short term, of being filled. Id. Worse, 31 of the vacancies are deemed emergencies, as defined by the caseload of the court with the vacancy, as well as how long the judgeship has been vacant. Administrative Office of the U.S. Courts, Judicial Emergencies.

The reasons for these vacancies and for the rancor associated with the confirmation process for federal judges were the subject addressed by a panel of experts at the annual meeting of the ABA’s Section of Litigation in Washington, D.C., this spring. The program was organized by the ABA’s Appellate Practice Committee. This article summarizes key points made by the panelists, takes note of more recent developments that have brought the confirmation process to a virtual standstill, and explains potential reforms proposed by one of the panelists.

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