Federal Courts and Nominations

It’s Senate’s Duty to Confirm Judges

While Washington has been consumed by the debt ceiling crisis, another serious crisis demands the attention of President Barack Obama and the Senate: the threat to justice by our overworked federal judiciary.

There aren’t enough judges to hear the cases piling up in federal courtrooms across the country — which for countless Americans means justice significantly delayed and denied.

Our federal courts, which hear cases brought by ordinary Americans to vindicate rights guaranteed by the Constitution, are overworked and understaffed. Today’s federal judiciary resembles our armed forces — stretched thin and deployed on multiple tours of duty.

There are now almost 90 empty seats on the federal bench, with 22 more retirements on the way.

Make no mistake, judges now on the bench are doing their part — and then some. Last month, federal Judge Malcolm Muir died in his chambers at age 96, while working on Social Security appeals. Muir had continued to work literally until his last breath, to reduce the case backlog caused by a judge shortage. He was the fourth oldest judge on the federal bench when he died. Last December, U.S. District Judge James F. McClure Jr. died at age 79 — also while working at the courthouse.

With fewer new judges being confirmed, the third branch of government is increasingly run by judges working well into their 80s, 90s and even 100s.

“The way we are going,” 7th U.S. Circuit Court of Appeals Judge Richard Cudahy, age 84, said, “it looks to me as if most of the judicial work is going to be done by 80- and 90-year-olds like me … since they will be the only ones left to do anything.”

There have been at least 80 vacancies on the federal courts for the past 760 straight days and counting, according to a recent Constitutional Accountability Center study. At the same time, only 35 new permanent judgeships have been authorized by Congress in the past 20 years — even as the overall federal caseload has expanded by fully a third.

The third branch is deteriorating largely because of unprecedented Republican obstruction. Senate Republicans refuse to agree to votes for well-qualified nominees, who enjoy the unanimous support of their Republican and Democratic colleagues on the Senate Judiciary Committee. Today, 16 such nominees are waiting for a vote by the Senate, with four more qualified nominees approved by the Judiciary Committee, and new nominations being added regularly to the Senate calendar.


Some Republican senators are blocking — or placing holds — on judicial nominations for reasons unrelated to justice, to serve their own political interests. Republican senators are also delaying or blocking nominees who would fill seats in courtrooms so overwhelmed with cases that they are deemed by the Administrative Office of the United States Courts to be “judicial emergencies.” It is a level of obstruction not seen under any previous president in U.S. history.

Again, numbers tell the story. The glacial pace of judicial confirmations has seen the number of judicial vacancies explode from 55, when Obama took office, to 88 today. By this time in the Bush administration, the Senate had confirmed 40 percent more judges than it has during the Obama administration.

Astonishingly, in the past two months, the Senate has voted on just 11 nominations. The chamber could have easily confirmed judges while awaiting a final debt ceiling deal. Instead Republicans blocked, stalled and delayed.

The Senate has now recessed for a month, yet the work of the courts continues.

When judicial vacancies remain at such record levels, needless delays create a crisis that has drawn concern from all corners — including Chief Justice John Roberts, Attorney General Eric Holder, federal judges around the country and bar associations.

The Senate is failing in one of its key constitutional duties. It is preventing the third branch of government from doing its job — and making it impossible for Americans to have their cases heard in a timely fashion.

The solution is simple. With no Supreme Court nomination battle consuming Washington this fall, there are no excuses. The Senate should vote on these waiting nominees at the earliest possible moment when it returns from its August recess.

It is time for the Senate to do what the Constitution commands — advise and consent to the nomination of qualified judges. The long-term health of the third branch of government depends on it — and so do the American people.

Andrew Blotky is the director of Legal Progress, the legal policy program at the Center for American Progress. Doug Kendall is the president and founder of the Constitutional Accountability Center.

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