Federal Courts and Nominations

“Judicial Emergency” Seat on Ninth Circuit Still Vacant While Goodwin Liu Marks One Year Anniversary as Nominee to Fill It

On February 24, 2010, President Obama nominated the well-qualified and highly regarded legal scholar Goodwin Liu, Associate Dean and Professor at Berkeley Law School, to fill a seat on the Ninth Circuit, one of the busiest appellate courts in the country.  Despite being voted out of the Judiciary Committee in May, Professor Liu never received a vote on the Senate floor during the last Congress, one of many victims of the unprecedented obstruction by Senate Republicans of the President’s judicial nominees.  As a result, Liu’s nomination “died” at the end of the Congress, and Liu has now been forced to endure the further delay of re-nomination and yet another hearing before the Judiciary Committee, scheduled for this Wednesday, March 2, 2011.

The judgeship to which Professor Liu has been nominated is a new seat, added to the Ninth Circuit by legislation co-sponsored by Senators Jon Kyl (R-AZ) and Dianne Feinstein (D-CA) to help meet what the two Senators called “a judicial emergency so severe that judges [on the Ninth Circuit] have the highest caseload in the nation.”  Senator Kyl elaborated on the very real harms suffered by individual Americans when our nation’s courts are understaffed:

Plaintiffs who have been injured, criminal defendants seeking reviews of their convictions, and victims who are waiting for justice; for these people, justice delayed is justice denied.  This new seat will help alleviate the delays of the Ninth Circuit.

But the seat still sits empty, a year after Professor Liu’s nomination, and the situation has gotten even worse.  The vacancy is now one of three on the Ninth Circuit, each of them denominated a “judicial emergency” by the federal judiciary because of the court’s staggering caseload.  With those vacancies, as well as vacancies on the District Courts within the Circuit, the crisis in the Ninth Circuit has grown so dire that, in November, Ninth Circuit Chief Judge Alex Kozinski, a Reagan appointee, and his colleagues on the court’s Judicial Council, wrote to the Senate’s leadership “to emphasize our desperate need for judges.”  The letter pointedly noted that “[c]ourts cannot do their work if authorized judicial positions remain vacant,” and urged that the judicial vacancies within the Circuit “be filled promptly.”  As the judges observed, some of those vacancies “have been open for several years and declared ‘judicial emergencies.’”

Spending a full year as a pending judicial nominee is nothing to celebrate.  Senators should heed the pleas of Judge Kozinski and his colleagues, move quickly to report Goodwin Liu’s nomination out of Committee, and then move promptly to confirm him and fill this judicial emergency seat.  As the words of Senator Kyl and Chief Judge Kozinski make clear, fully staffing our federal courts isn’t about politics.  It’s about justice.

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