Federal Courts and Nominations

Even If All Judicial Vacancies Were Filled, We’d Still Need More Judges


Even If All Judicial Vacancies Were Filled, We’d Still Need More Judges
By Ian Millhiser
August 4, 2011


From the moment President Obama took office, Senate Republicans waged an unprecedented campaign of obstruction against his judicial nominees. During the 111th Congress, when Democrats actually controlled enough seats to break a filibuster, the GOP exploited the Senate’s many opportunities for delay to literally run out the clock before more than a trickle of judges could be confirmed. Now that Democrats control a mere 53 percent of the Senate, the body’s broken rules enable the Republican minority to block any judge they want through a filibuster.

As a result, judicial confirmations have fallen off a cliff. President Obama’s nominees have been confirmed at only slightly more than half the rate of his two predecessors’ nominees, and Obama is now the only recent president to see the number of judicial vacancies actually go up during his first 30 months in office.

Yet, even if every single judicial vacancy were filled tomorrow, that would only solve part of the problem. As a new report by the Constitutional Accountability Center explains, the number of congressionally authorized federal judgeships has barely changed at all since the first President Bush left the White House, while the federal judiciary’s caseload has skyrocketed:

In some parts of the country, this increased caseload has become completely unmanageable. As Texas federal Judge W. Royal Furgeson recently explained:

[A] normal federal court will handle during this period of time something like 75 to 85 to 90 criminal cases and I was handling 450. . . . I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court. And I felt like I was in night traffic court.

The problem, of course, in night traffic court if my client got fined it was going to be a couple of hundred bucks at the most, and the problem that I had with the defendants before me, they were looking at years — potentially years and years in a federal prison. And I was able to give them about as much attention as I could see those traffic judges giving their — the defendants before them attention when the fines were about $100 or $200. It was not a good feeling and federal judges all across the border continue to deal with this problem of not having the time it takes to really consider what they’re doing, especially in sentencing. And I don’t think there’s a federal judge in American that will tell you — that will disagree with this statement. The hardest job we have is to sentence human beings. You know, it’s something to judge another human being. And it’s a very hard job. And to feel like you’re not being able to give it near the attention it deserves creates a desperate sense of failure on your part.

This dysfunction is Texas’ present, and if Congress does not act soon it will be America’s future. A responsible Senate would return to Washington today to confirm the twenty judges currently awaiting a floor vote — rather than spend the next five weeks on vacation. A responsible Senate minority would end its two year campaign of obstruction against President Obama’s nominees. And a responsible Congress would authorize enough new judgeships to accommodate the increase in caseloads since the early 1990s.

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