Politics and the Courts
Published: October 16, 2012 - New York Times
The winner of the presidential election will have
scores of federal judgeships to fill and the chance to shape the courts — even
aside from potential Supreme Court vacancies should one or more of the current
justices retire.
After a slow start, the Obama administration picked up
the pace in filling judgeships, but it will end up with more vacancies on
Election Day than the day the president took office. Currently, 32 positions,
considered gjudicial
emergenciesh by court administrators, are unfilled, creating heavy workloads
for judges on those courts.
On the federal appeals courts, the final arbiters on
all but the tiny percentage of cases decided by the Supreme Court, there are now
14
judgeships open out of 179 total seats. With about six judges a year taking
senior status, working only part time, the next president could have as many as
40 appellate openings to fill by the end of 2016.
On the trial courts, which resolve around 325,000
cases a year, six times the number of appeals court cases, there are now 62
vacancies out of 677 positions.
Much of the problem, of course, has been the broken
confirmation process in the Senate, where Republicans have used the filibuster
to block judicial nominees for no reason except to prevent President Obama from
filling the seats. In the next Congress, the Senate should ensure every nominee
an up-or-down vote within 90 days.
The United States Court of Appeals for
the District of Columbia, one of the nationfs most important courts, has
suffered particularly in this process, with three unfilled seats and no judge
confirmed for the court since 2006.
Politicization has also crept into the process for
approving district court nominees. In the 101st Congress in 1989 and 1990, 96
percent of the district court nominees picked by President George H. W. Bush
were confirmed, and the confirmation process took on average just 77 days.
Twenty years later, only 56 percent of President Obamafs nominees were confirmed
and the process took on average 174 days.
During the Obama years, nominees presenting no
ideological threat have been held up in the Republicansf campaign of partisan
attack and obstruction — even against trial judges whose decisions are rarely
ideological and can be appealed.
The holdups have cost Americans dearly — in justice
delayed (it now generally takes two years to get a federal civil trial) and
justice denied. It is time to
adopt a more efficient, less political approach to district court
confirmations. The courts must be brought to full strength so they can meet
the demands for justice. The next president and the new Senate should make
reforming the confirmation process a paramount priority.