Monday, August 22, 2011

Stark Picture Of Judicial Vacancy Crisis

By Nicole Flatow, cross-posted from American Constitution Society

Although many prominent legal leaders, editorial boards and commentators have long lamented the high number of judicial vacancies plaguing our courts, it is not easy for those removed from the process to understand how judicial nominations work, and what impact these empty seats  have on our justice system.

The White House has put together a new infographic that paints a powerful picture of the nature of Senate obstruction of judicial nominees, and highlights Obama’s efforts to diversify our federal courts.

Here are a few key facts included in the infographic:
  • Obama’s nominees are highly qualified: All 155 of President Obama’s nominees have been rated qualified or well-qualified by the American Bar Association, yet only 97 of the 155 have been confirmed.
  • Obama’s judicial nominees have waited more than five times longer for a Senate confirmation vote than Bush’s nominees: President George W. Bush’s district court nominees waited an average of 20 days for a Senate confirmation vote following their approval by the Senate Judiciary Committee, which vets judicial nominees. President Obama’s district court nominees have waited an average of 103 days, and his circuit court nominees have waited an average of 151 days. Some of President Obama’s nominees have waited as long as 21 months for the Senate to schedule an up-or-down vote.
  • While nominees are held up, justice is delayed: In 16 percent of civil cases before the federal courts in 2010, individuals had to wait more than three years for a resolution. In 2006, only six percent of cases took that long. (And in the districts containing some of the 37 vacancies deemed judicial emergencies, the waits can be much longer.)
  • Holding off trials costs money: In 2010, longer waits for detained inmates before their trials cost the government $1.4 billion.
  • A consistently high vacancy rate will erode the “quality of justice,” Supreme Court Chief Justice John G. Roberts warned in his 2010 year-end report.
  • The vacancy rate is rising rather than falling: President Obama started his presidency with 55 federal court vacancies. There are now 91 vacant seats. At this point in President George W. Bush’s presidency, there were only 52 vacancies.
The good news for President Obama is that he has made strides toward “creating a judicial pool that reflects the nation it serves,” achieving confirmation of the first Latina on the Supreme Court, openly gay man on a federal district court, and women nominees of Chinese, Korean and Vietnamese descent.

The bad news is that there are many more diverse candidates whose nominations are being held up by the Senate.

As a post on the White House blog accompanying the infographic explains, the current level of Senate obstruction of judicial nominees is unprecedented:
[E]arlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called “not only frustrating but also destructive” in an editorial published yesterday.
The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench. Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”
View the White House infographic and blog post here. For more information, you can view an interactive map and more statistics and news about the judicial vacancy crisis at


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