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Published: 11 December 2010

Created: 11 December 2010

Last Updated: 11 December 2010

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There is crisis in the Federal courts today -- an unprecedented absence of judicial nominations and confirmations. The numbers are startling: 104 current vacancies, 20 at the Circuit level and 84 at the District Court level, a vacancy rate of 11.9 percent, with 48 “judicial emergencies” as determined by the Administrative Office of the U.S. Courts. There are 18 more announced vacancies, where judges have publicly announced their imminent retirement.

There are numerous consequences of this crisis, many of which are known by the lawyers who try cases and judges who hear them: high vacancy rates lead to enlarged dockets, increased wait times, an overburdened judicial staff, and, perhaps, less instructive decisions than might otherwise result from less burdened judges. This will have a direct impact on thousands of ordinary Americans, who may see the desire for justice significantly delayed or denied altogether. Nominating and confirming individuals to fill judicial vacancies is critical to the smooth functioning of the judicial system.

What is the cause of this crisis? First and foremost, is the unprecedented delay in the confirmation process. In the current Congress, fewer than half of the judicial nominees reported out by the Senate Judiciary Committee have been confirmed. As of November 19, there were 54 pending nominations, of which 31 are pending hearing at the Judiciary Committee and 23 are pending on the floor of the U.S. Senate waiting for an up-or-down vote. Of the latter, six are at the Circuit level and 17 at the District Court level, one since October 2009 and many for as long as five months.

How did we get into this situation? Even more importantly, how can we extricate ourselves from it so that the Federal Courts can again be at full strength?

There is plenty of blame to go around. President Obama raised hopes among lawyers that, as a former law professor, he would move to fill the many vacancies that existed in early 2009. That hope was dashed as the president, perhaps preoccupied by other crises at home and abroad, was slow to make judicial nominations.

But delays in making nominations also are the result of action -- or inaction -- by other parties. Even before the president makes a nomination, senators (and sometimes representatives) from each state traditionally make recommendations to the president of potential nominees, and many delays have resulted from an inability or unwillingness of the relevant senator to make a selection. After a recommendation is made, the appointee must be vetted thoroughly by the FBI and Justice Department, as well as by the American Bar Association’s Standing Committee on the Federal Judiciary, processes that all contribute significantly to pre-nomination delays.

Hearings are then scheduled by the Senate Judiciary Committee. Unlike other aspects of the process, the Committee process has been relatively speedy: nominees under President Obama have waited an average of 42 days from nomination to being voted on by Committee, and reported to the floor, which is faster than Bush’s nominees were considered at a comparable time. More significant, however, have been the unconscionable delays in the Senate since January 2009, which have prevented many judicial nominees from coming to a vote by the full Senate. Judicial confirmation rates in this Congress have reached an all-time low. According to a Brookings Institute study, despite a Democratic Senate majority, Obama’s appeals court nominees have taken much longer than Bush’s nominees -- an average of 202 days versus 154. As of last April, four of Obama’s seven circuit appointees waited more than 180 days for confirmation. Since then, the delays have grown even longer.

To date, the Senate has confirmed less than half of the judicial nominees made by Obama. By contrast, at this point in the 107th Congress, the Senate had confirmed 61 percent of Bush's judicial nominations.

President Obama has pointed out that of the 23 judicial nominees on the floor sixteen had received unanimous support at the Judiciary Committee, a fact that should have suggested that the nominations were not controversial.

The most accurate explanation of this obstruction and delay seems to be that judicial nominations have become a pawn in the partisan battle that has enveloped Washington over the last several years. Judicial nominations are being held hostage to the views of the present Senate minority which is systematically objecting to unanimous consent to taking floor votes and is forcing a cloture vote on every nominee, whether controversial or not: unless 60 senators are present and will vote to close debate on a nomination, the nominee will not even come up for a vote.

The onerous process the Senate uses to bring a vote to cloture rules out other business taking place on the Senate floor. Strikingly, on those few occasions that cloture has been invoked, the nominees have then passed by unanimous or near unanimous votes, an indication of the arbitrariness of the delay efforts. On most occasions, once a single senator voices objection to the unanimous consent request to bring a nomination to a vote, the majority leader has not taken the step of seeking a cloture vote because of the press of other business.

What can be done to change the process to allow debate and votes on judicial nominees? The only solution presently being discussed is procedural reform. Sen. Majority Leader Harry Reid has promised that filibuster reform will be high on the agenda of the new Congress, and Senator Schumer, third-ranking senator on the Democratic side, has been holding hearings on filibuster reform. But the mid-term elections and the diminishing of the Democrat’s majority means that those interested in reform will face a daunting challenge.

There appear to be only two ways to change the rules. One is to rewrite Rule 22 itself. However, because of the present wording of Rule 22, any change to the sixty-vote threshold would itself require sixty-seven votes, truly a Catch-22 situation. A second route has been proposed by Senator Tom Udall -- relying on Supreme Court precedent that no Congress can set rules so as to bind a future Congress, Senator Udall argues that each new Senate may set its rules by a simple majority vote. That alternative has its supporters but even that route could well be an impossible one to pursue.

There have also been possible litigation solutions discussed from time to time, based upon the analysis that the use of the filibuster is unconstitutional.

The argument relies in part on the Supreme Court’s 1892 holding in United States v. Ballin that found that when a majority is present the house is in a position to do business and its capacity to transact business does not depend upon the disposition or assent or action of any single member or fraction of the majority present. Even assuming that today’s Supreme Court would follow that principle, however, it is not at all clear that a judicial nominee who was thwarted by the need to have a cloture vote taken to be confirmed would have judicial standing to raise any of these arguments in a constitutional litigation.

We are thus left with a crisis that grows worse as sitting judges grow older and retire. As Attorney General Holder recently warned, “Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades.” Indeed, with one-eighth the authorized seats vacant, there are more vacancies today than existed when President Obama took office. The institution of the U.S. Senate seems presently incapable of resolving the crisis. One can only hope that a sense of bipartisan cooperation, perhaps inspired by pressure on individual senators from those who are most affected, individuals, companies, and their legal representatives, by sitting judges, such as Justices Ginsburg and Kennedy, who spoke out recently about the crisis, and an aroused media, will return to that institution on this critical issue, if not on others, in the very near future.

David Brodsky has lived in Scarsdale with his wife Stacey and their two daughters, Izzy and Nell, since 1993. Nell. He has one son, Peter, by a prior marriage. Brodsky is a partner in the law firm of Latham & Watkins, a graduate of Brown University and Harvard Law School and he is a member of the Board of the American Constitution Society.