Issues to Watch

Is the Senate Eschewing Its Constitutional Duty Concerning Confirmations to the Federal Bench?


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Is the Senate Eschewing Its Constitutional Duty Concerning Confirmations to the Federal Bench?

Laura Cress*

Since Republicans took control of the Senate in January 2015, they have been confirming federal judges at the slowest pace in more than 60 years, since 1953.  Jennifer Bendery, Congratulations, GOP.  You’re Confirming Judges at the Slowest Rate in 60 Years, Huffington Post (Sept. 17, 2015, 2:08 PM), http://www.huffingtonpost.com/entry/obama-judicial-nominations_55faced7e4b08820d9178a5c.  As of October 9, 2015, President Obama’s seventh year in office, the 114th Congress had confirmed a grand total of seven federal judges since January.  Confirmation Listing, U.S. Cts., http://www.uscourts.gov/judges-judgeships/judicial-vacancies/confirmation-listing (last visited Oct. 9, 2015).  For comparison, senate Democrats, during President George W. Bush’s seventh year in office, had confirmed twenty-nine of the President’s judicial nominees by this point in his presidency.  Bendery, supra.  These startling statistics should be concerning to the legal community because studies show they may impact the ability of the federal court system to dispense justice consistently and in a quality manner.  Alicia Bannon, Brennan Center for Justice Analysis: The Impact of Judicial Vacancies on Federal Trial Courts, Brennan Ctr. for Just. (July 21, 2014), https://www.brennancenter.org/publication/impact-judicial-vacancies-federal-trial-courts.   

Judicial vacancies are reported by the Administrative Office of the U.S. Courts, the administrative agency that provides support to the federal courts and carries out implementation of Judicial Conference Policy.  Judicial Administration, U.S. Cts., http://www.uscourts.gov/about-federal-courts/judicial-administration (last visited Oct. 9, 2015).  A judicial vacancy exists where Congress authorized a judgeship, but there is no active judge on the bench to fill the seat, thus creating a vacant seat.  Judicial Vacancies, Amn. B. Ass’n, http://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/independence_of_the_judiciary/judicial_vacancies.html (last visited Oct. 9, 2015).  There are currently more than 850 authorized judgeships, and as of October 9, 2015, 67 vacant seats.  Judicial Vacancies, U.S. Cts., http://www.uscourts.gov/judges-judgeships/judicial-vacancies (last visited Oct. 9, 2015). 

A judicial emergency is a type of judicial vacancy in either a U.S. Circuit Court of Appeals or a U.S. District Court and is determined by the amount of time a seat has been vacant and the court’s caseload.  Sarah Binder & Russell Wheeler, Do Judicial Emergencies Matter? Nomination and Confirmation Delay During the 111th Congress, Brookings Institution (Feb. 16, 2011), http://www.brookings.edu/research/papers/2011/02/16-judicial-emergencies-wheeler-binder.  Most judicial emergencies are comprised of districts where a vacancy has remained pending for a minimum of eighteen months.  Id.  When President Obama took office in 2008, there were eighteen total judicial emergencies.  Id.  That number has continually increased during his two terms as President, and on October 9, 2015, there were thirty judicial emergencies. Judicial Emergencies, U.S. Cts., http://www.uscourts.gov/judges-judgeships/judicial-vacancies/judicial-emergencies (last visited Oct. 9, 2015).

Vacancies strain the judiciary’s resources, particularly in districts with judicial emergencies.  Bendery, supra.  Judges’ individual caseloads are increased when there are fewer judges at each court to preside over all incoming cases.  Bannon, supra.  As a result of judges’ heavier caseloads, decisions on motions and trials are further prolonged, thus delaying justice for persons and businesses seeking a decision from the courts.  Id.  Judicial vacancies contribute to a “trickle-down” effect for court administrators and staff, and judicial burn-out becomes a legitimate threat.  Id. 

There is an effective way to stop the strain on the federal judiciary’s resources, and it begins in the Senate.  Article II of the Constitution reserves for the Senate the “advice and consent” role of the confirmation process for federal judges.  K.O. Myers, Senator Grassley’s ‘Glacial’ Pace on Judicial Nominations, Amn. Const. Soc’y: ACS Blog (Apr. 23, 2015), https://www.acslaw.org/acsblog/senator-grassley%E2%80%99s-%E2%80%98glacial%E2%80%99-pace-on-judicial-nominations.  The President nominates an individual to fill a judicial vacancy, but senators from the nominee’s home state must first approve the nomination.  Nancy Kaufman, The Disgraceful State of Judicial Nominations, Huffington Post (Oct. 5, 2015, 11:42 AM), http://www.huffingtonpost.com/nancy-kaufman/the-disgraceful-state-of-_b_8244036.html.  A senator from a nominee’s home state currently has the power to indeterminately delay the nominee’s hearing before the Senate Judiciary Committee without stating a reason.  Id.  Furthermore, the chair of the Senate Judiciary Committee, currently Senator Chuck Grassley (R-Iowa), has extraordinary influence on the judicial confirmation process.  Myers, supra.  As chairman, Senator Grassley sets the committee’s agenda and schedules hearings and committee votes on pending nominees, a necessary step before the nominee’s floor vote before the entire Senate where he or she can be confirmed.  Id.

Speculation is abundant that the senators’ behavior patterns are deliberate delay tactics intended to slow the confirmation process of federal judges.  Kaufman, supra.  Appointments to the federal bench as a district judge or a court of appeals judge are lifetime appointments.  Id.   By delaying the filling of judicial vacancies, the Republican-controlled Senate is able to deny President Obama from appointing his selected nominees to the bench, nominees that are likely to have similar political ideologies as the President.  Id.      

  Senator Grassley, as leader of the Senate Judiciary Committee, should set politics aside and focus instead on the Senate’s constitutional obligation to stack the federal bench with sufficient judges to resolve disputes and hear cases.  Furthermore, President Obama’s judicial appointments have added noteworthy diversity to the federal bench, including women and minority appointments.  The Vacancy Crisis in the Federal Judiciary: What’s at Stake for Women, Nat’l Women’s L. Ctr. (Sept. 14, 2014), http://www.nwlc.org/resource/vacancy-crisis-federal-judiciary-whats-stake-women.  A diverse bench is more representative of the diverse population of this great nation that our judges serve.  Id.  The legal community should hold our senators accountable to ensure that this trend continues for the last year of President Obama’s term in office.  The Senate must not continue to eschew this vital constitutional duty in favor of politics.


*Laura Cress is a second year law student in the evening program at the University of Baltimore School of Law.  She works in Washington, D.C. for the United States Courts.  She is interested in civic education and engagement and issues affecting judicial administration and the federal courts. The views and opinions expressed in this article are those of the author’s and do not necessarily reflect the official policy or position of any agency of the U.S. government.

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