Federal Courts and Nominations

On The First Monday in October, We Must Not Forget About the Other Federal Courts

On October 4, this year’s proverbial “first Monday in October,” the eyes of court-watchers around the country will be trained on the Supreme Court, not only because the Court will be starting a new Term, but also because it will be doing so with a new Justice on the bench.   And not just any Justice.  With this summer’s confirmation of Elena Kagan to succeed John Paul Stevens, the nine Justices on our Nation’s highest court now include three women for the first time in history, a milestone that will undoubtedly bring even more media attention than usual to the start of the new Term.

But while the Supreme Court is fully-staffed, the same can hardly be said of our country’s lower federal courts – the trial courts (known as District Courts), and the courts of appeals (the Circuit Courts) – where more than 100 judicial seats — nearly one in eight — are now vacant.  It is the judges on these courts who bear the greatest burden when it comes to dispensing justice to the American people.

In 2009, the federal District Courts disposed of nearly 340,000 cases.  In that same year, the Circuit Courts disposed of approximately 60,500 appeals.  In sharp contrast, the Supreme Court during its October 2009 Term issued opinions in 92 cases.  To be sure, the cases the Court hears are enormously important, typically involving constitutional or statutory issues of significance far beyond the individual cases being heard, and the Court’s decisions set national precedent.  Indeed, it would be hard to overstate the High Court’s importance when it comes to the protection of Americans’ constitutional and statutory rights and interests.

Still, as the statistics underscore, it is the lower courts that are the courts of last resort for most Americans.  That’s why it is imperative that the vacancies on these courts be filled, and filled promptly.  Unfortunately, the Senate just left town until mid-November, and did so without acting on any of the 23 judicial nominees who have been favorably reported out of the Judiciary Committee and have been waiting for a vote on the Senate floor, some since last winter.

Worse, the Senate’s foot-dragging on President Obama’s nominees is nothing new.  Although the President after taking office did get off to a slow start in naming nominees, it hasn’t mattered that he subsequently picked up the pace or how many people he has tapped for the federal courts.  Since the start of the Obama Administration, the Senate’s Republican leadership has engaged in an unprecedented abuse of the Senate’s procedural rules to obstruct and delay the confirmation even of uncontroversial Obama nominees who have the support of their home-state Republican Senators.

Indeed, the 23 nominees left languishing on the Senate floor yesterday include Mary Murguia of Arizona, whose nomination to the Ninth Circuit has the support of Republican Senators Jon Kyl and John McCain, and Scott M. Matheson, Jr., of Utah, whose nomination to the Tenth Circuit has the support of Republican Senator Orrin Hatch.  When uncontroversial nominees with that sort of high-powered Republican support can’t even get an up-or-down vote on the Senate floor, something is seriously wrong.  So wrong that Eric Holder, the Attorney General of the United States, published an op-ed earlier this week to decry the “confirmation crisis in our courts,” echoing concerns raised last month in a speech by Anthony Kennedy, a sitting Supreme Court Justice.

So forgive me if my usual excitement about the start of a new Supreme Court Term is a bit tempered this year.  Yes, it’s unquestionably important to have all nine seats on the Court filled.  And it’s nice to be able to celebrate another first for women on the Court.  But it would also be nice if the rest of the federal courts were fully-staffed and able to dispense justice timely to the vast majority of litigants whose cases will never get anywhere near our Nation’s highest court.

For that to happen, every constitutional stakeholder in the process must make this a priority.  The President must continue to fill the pipeline with nominees — he made four new nominations just yesterday.  He could also send a message about how important this is by publicly setting a goal — that by this time next year, he will have named a nominee at least for every judicial seat that is vacant today, and challenge the Senate to fill those vacancies.  For its part, when the Senate returns in November, it should move quickly to vote on pending nominees, and, as soon as the next Congress starts in January, cease the obstruction and ensure that well-qualified nominees move quickly from the Judiciary Committee to a vote on the Senate floor.

It would be wonderful if, by next year’s first Monday in October, we could have much more to celebrate about the federal courts than just the start of a new Supreme Court Term.

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