Federal Courts and Nominations

Trump to Inherit ‘Judicial Emergency’

By Eleanor Tyler

President-elect Donald Trump has an opportunity to shift the federal judicial system to the right by filling the more than 100 vacancies on the federal bench with conservative lifetime appointees.

Of the 866 federal judgeships approved by Congress, 103 are currently open, according to the U.S. Courts’ official tally. That means Trump has a head start at filling almost 12 percent of the federal court system, including key appellate courts and a slot on the U.S. Supreme Court.

That isn’t the norm, according to an analysis by Russell Wheeler, a scholar of governance studies at The Brookings Institution, a Washington think tank. Looking at the records of opposition-party Senates in the final quarters of each two-term president since Ronald Reagan, he found that

[t]hose Senates contained the vacancy rate while this Senate has let it balloon.’’ While vacancies at the end of convention recesses in 1988 and 2008 declined and vacancies held steady in 2000, they ‘‘shot up by 118 percent’’ since January 2015, he said.

Senate Republican leaders said they had no plans to move any of President Barack Obama’s nominees to serve on the federal judiciary this year (see related story).

‘Confirmation Wars’

‘‘These aren’t vacancies that just happened to exist and the president and his office were ignoring them, they exist because the Senate Republicans refused to nominate people or refused to process nominees even from their own party,’’ Judith Schaeffer, vice president of the progressive think tank and public interest law firm Constitutional Accountability Center, told Bloomberg BNA.

Because senators traditionally recommend judicial nominees and can sideline nominees by withholding their approval at the committee level, many of the people waiting to be appointed are actually Republican nominees, she said.

But Carl Tobias, a professor at the University of Richmond School of Law, told Bloomberg BNA that the causes of the current impasse are complex. Many observers point to Robert Bork’s failed 1987 Supreme Court bid as the beginning of the modern ‘‘confirmation wars,’’ he said. Since then, although there have been periods of cooperation, the process ‘‘seems to be getting worse.’’

‘‘There is plenty of blame to go around,’’ he said. Regardless of fault, the length and sheer number of vacancies make the hardships on the federal judiciary from the current backlog ‘‘unprecedented.’’

With Republicans controlling the White House and the Senate, resistance to filling those vacancies may evaporate. Leadership changes in the Senate Judiciary Committee, however, add to uncertainty about how judicial nominations will proceed. Sen. Patrick Leahy (DVt.), former chair of the committee, will leave his current position as ranking member at the end of this session.

Short Benched

Congress’s refusal to consider President Barack Obama’s nomination of Merrick Garland to fill the Supreme Court vacancy left by the death of Antonin Scalia last February has garnered a lot of attention.

But Garland isn’t alone: Congress has approved only 22 nominees for the federal judiciary this term, and 38 of the pending nominees have been waiting longer than Garland, Wheeler said.

According to the U.S. Courts, there are 59 nominations pending if federal territorial courts are included, leaving 44 openings with no identified nominee. Twenty-five nominations are pending on the Senate floor, having made it through the rest of the nomination process only to come to a standstill. At the end of the term, any pending nominations will expire.

Congress could double its number of appointments this term by holding a floor vote on those candidates during the lame-duck session that started Nov. 15, or by voting to confirm them between Jan. 3 when the 115th Congress begins and Jan. 20 when Trump takes office. Such a move has precedent in prior administrations, but is ‘‘unlikely’’ in the current environment, Tobias said.

The bulk of the vacancies are at the district court level, where almost all federal cases are decided: Federal appeals constitute only about 10 percent of all federal civil cases and only a small percentage of cases appealed are reversed. As a result, the vast majority of federal law is interpreted and applied at the district court level.

‘Judicial Emergencies.’

The U.S. Courts has characterized many of the open positions ‘‘judicial emergencies.’’ The judicial branch keeps a list of open positions, the length of the vacancy, and the weighted caseload of each judge on the impacted court to decide which vacant spots are causing the most hardship for litigants and other judges on the bench.

Many of these emergency vacancies are in states with two Republican senators. A prime example of the problem is in Texas, which has a judicial vacancy rate of 20 percent—roughly double that of federal courts generally, and where U.S. Courts has declared all 11 federal district court vacancies to be emergencies. The oldest vacancy dates back to Judge Janis Graham Jack’s 2011 retirement and has been pending for 1,994 days as of Nov. 15.

Texas has two Republican senators: John Cornyn, a former Chief Justice of the Texas Supreme Court, and Ted Cruz, a former state Solicitor General. Five people are nominated to fill some of those vacancies, all of them nominated in March 2016. All five had hearings in the Senate Judiciary Committee in September, but the Senate has taken no further action.

In addition to the district court openings, two spots on the U.S. Court of Appeals for the Fifth Circuit, which includes Texas, are open. Those judges took senior status in 2012 and 2013 and no replacements have been nominated.

Because of the vacancies, the caseload per judge on several of those courts is extremely high. In the Eastern District of Texas, for example, U.S. Courts estimates the weighted caseload at 1,261 per judge. On a purely per capita basis, a federal judge’s caseload should be about one-fourth of that number.

Failure to fill the bench ‘‘puts more pressure on the judges that are there, and puts litigants in a bind,’’ Tobias said. 

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