This week, the Senate blocked the nomination of Robert Wilkins to the U.S. Court of Appeals for the D.C. Circuit. President Obama nominated Wilkins to fill Judge David Sentelle’s seat. Failing to get the 60 votes needed to overcome a Republican filibuster, Wilkins won’t move forward to an up-or-down, simple-majority vote by the Senate.
Senate Republicans insist that the D.C. Circuit does not need any more judges in order to properly carry its current caseload. While Wilkins might be well-qualified to be a circuit judge, the Senate just isn’t hiring. President Obama said in a written statement, “When it comes to judicial nominations, I am fulfilling my constitutional responsibility, but Congress is not. Instead, Senate Republicans are standing in the way of a fully-functioning judiciary that serves the American people.” Democrats in the Senate, led by Senator Patrick Leahy (D-Vt.), threaten to alter the rules governing judicial nominations to prevent filibustering.
Democrats’ and Republicans’ reasons for fixating on the D.C. vacancies are political and obvious. It’s an unusually influential court, issuing rulings on administrative and regulatory matters with nationwide implications. What about the rest of the country, though? While politicians in Washington fuss over the D.C. Circuit, what is being neglected elsewhere?
The most current list of judicial vacancies is here. A total of 93 seats on the federal bench are currently vacant. Fifty-one nominees to fill those seats are pending. There are 874 Article III judgeships. So, nationwide the federal bench is functioning with about a ten-percent absence of active judges. Courts within the Ninth Circuit have a total of 17 open judgeships. Courts within the Eleventh Circuit have a whopping 13 current vacancies, with only four pending nominations to fill those seats.
Notice not only the number of vacancies, but the lengths of time many of those vacancies have remained open. Judge Malcolm J. Howard from the Eastern District of North Carolina took senior status at the end of 2005. Jennifer Prescod May-Parker was nominated to fill his seat in June of this year, but she has yet to be confirmed. Judge Royal Furgeson from the Western District of Texas took senior status in 2008. He retired this year, becoming the dean of the University of North Texas at Dallas College of Law, which is set to open this coming academic year. No one has been nominated to fill his seat. While most of the current vacancies have not stood open for quite so long, many of them have been open for two years or more. Moreover, many of the judges who have retired or taken senior status have no nominated successor in their wake. For the courts of the Fifth Circuit, for example, there are nine vacancies (with a tenth coming next month with Judge Carolyn Dineen King planning to assume senior status) and not a single pending nominee.
One of two possibilities is likely true. One possibility is that the federal courts as a whole actually do not require nearly so many active judges as the courts have seats on the bench. The judiciary has been functioning short-handed for some time now. Perhaps this belies the claim that we actually need so many federal judges.
More likely, though, is the possibility that the impact of a short-staffed federal bench is felt disproportionately across the country, and some places — perhaps many places — are badly hurting for want of active judges.
First, we should pay attention to the differences between a judge taking senior status and retiring. Many senior judges continue to carry heavy caseloads, while retired judges carry none. In both cases, the judges’ seats are technically vacant and awaiting a nominated and confirmed replacement. The practical burden felt by the district or circuit, however, might be very different where the empty spots are the results of senior judges. Since most of the current vacancies are from judges taking senior status, not retiring, the urgency of filling those spots depends heavily on the workload those senior judges choose to take. Likely, our courts can only function with a high number of vacancies because a high number of those vacancies are the product of senior judges who still work full-time.
Second, the pain of long-open vacancies seems bound to hurt worst our district courts, less so than the courts of appeal. Federal district courts are strapped for cash and strapped for manpower. For an empirical look at the situation, consider the caseload statistics produced by the federal judiciary. For a more subjective, but equally telling account, read some of Judge Richard Kopf’s firsthand impressions on his blog Hercules and the Umpire, including his ongoing commentary on the impact of budgetary woes on the district courts and his take on vacancies and senior judges.
The Senate and the president are right that we ought to be concerned about federal judicial vacancies. The president has called the current gridlock in D.C. “completely unprecedented.” While they are focused almost exclusively on the wranglings in Washington, though, it may be the rest of the country hit hardest on a daily basis. And while circuit vacancies may be the sexiest ones to debate, our district courts are in greater need of support. What’s more, this political fixation on the D.C. courts, by both Democrats and Republicans, worsens the problem: not only are we not nominating and confirming judges around the rest of the country, we’re hardly talking about it. At the expense of the rest of us, D.C.-centrism prevails. That, unfortunately, is not unprecedented.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at email@example.com