Federal Courts and Nominations

The Chief Justice Calls for Action to Solve the Vacancy Crisis

By CAC Staff
On the final day of 2010, the vacancy crisis that is plaguing the federal judiciary was thrown into the spotlight by a previously silent and very important voice: that of Chief Justice John Roberts. In his annual Report on the Federal Judiciary, Chief Justice Roberts implored the “political branches” to cease the “blocking of judicial nominations,” as well as address the resulting “acute difficulties” in judicial districts that are short of judges. There is “an urgent need for the political branches to find a long-term solution to this recurring problem,” Chief Justice Roberts wrote.

While Chief Justice Roberts has correctly characterized the political problems that plague the judicial confirmation process as “recurring,” it is important to understand the truly unprecedented form of obstruction that has occurred to date in the Senate during the Obama Administration.  For years, Democrats and Republicans alike have been guilty of clogging the process for political purposes—but never like this.

Conservative-led obstruction of the judicial nominations process during the Obama Administration is unique in the fact that completely uncontroversial lower court nominees have been held hostage in a broader effort to grind the judicial confirmation process to a near standstill.   This fact is illustrated plainly by the numbers.  President G.W. Bush’s judicial nominees during the Democrat-controlled 107th Congress enjoyed a relatively swift average of 25 days from the time they were reported out of the Judiciary Committee until they were confirmed on the Senate floor.  That average has sky-rocketed to 120 days for the 60 Obama district and circuit court judges confirmed during the 111th Congress.   After waiting an average of four months for a floor vote, most of these Obama nominees were confirmed without recorded opposition, indicating this is delay only for delay’s sake.

Additionally, the overall number of days between nomination date and confirmation date has also risen sharply during Obama’s presidency. The 100 lower court judges nominated by President George W. Bush who were confirmed during the 107th Congress waited an average of 161 days between nomination and confirmation.  This number has increased by more than a month for Obama’s 60 confirmed judges—to an average of 196 days between nomination and confirmation.

So it has taken considerably longer per judge for President Obama to get many fewer judges  confirmed, facts that triggered the Chief Justice’s welcome statement on the matter.   It is now a new year, and a new Congress is about to convene with 96 current vacancies on the bench, 44 of which have been declared judicial emergencies.  It is time for something new.  We hope the Senate listens to Chief Justice Roberts.

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