Rule of Law

1000 Days

Today marks the 1000th consecutive day during which our judicial system has been operating with the burden of 80 or more vacancies on the federal bench. Aside from a completely anomalous period following the creation of 85 new judgeships in 1990, this is far and away the longest period of time during which the federal courts have been forced to operate at such an understaffed level. Across the country, these vacancies have translated into rising caseloads for overworked judges and unacceptable delays for the countless Americans seeking justice in the courts. While it is possible that the vacancy total will dip below 80 in the coming days due to a slow drip of confirmations secured by a recent and hard-fought-for deal in the Senate to allow confirmation votes on 14 judicial nominees, this slow trickle is not anywhere close to the decisive action that is needed to resolve the vacancy crisis that has been plaguing the country for nearly three years.

Although much has changed over the past 1000 days, one thing that has remained constant is the partisan obstruction by Republicans in the Senate that has kept the judicial confirmation process moving at a crawl. While a backlog in vacancies is typical at the beginning of a presidential term, the vacancy rate is usually brought down to a more manageable level well before a president’s fourth year in office.   Indeed, by this point in the first terms of Presidents Bill Clinton and George W. Bush, the vacancy totals were 55 and 45, respectively, and the Senate had already confirmed 181 of President Clinton’s nominees to the lower federal courts and 172 of President Bush’s. By comparison, the Senate has only confirmed 134 of President Obama’s nominees.

The glacial confirmation pace that has kept the vacancy number so high for the past 1000 days can be traced back to Republican obstruction at all levels of the judicial confirmation process.  Most important, even uncontroversial nominees are facing unprecedented cloture votes before they can be confirmed. The process of delaying floor votes for nominees has resulted in an average wait time of 111 days between the Judiciary Committee vote and Senate confirmation vote for President Obama’s nominees.   In sharp contrast, President George W. Bush’s nominees waited an average of just 22 days.

There should never again be a period when the federal judiciary faces such a high number of vacancies for so long; if the vacancy total dips below 80 in the coming days, it will hardly be a cause for celebration.  Rather, it will be a reminder that even in an election year, the Senate must put partisan wrangling aside and continue to staff the federal judiciary. The Senate owes nothing less to the judges and everyday Americans who bear the brunt of this politically-inflicted judicial vacancy crisis.