A contagion of unfilled federal judgeships across America has produced stunning delays for ordinary people seeking justice and their day in court.
Eastern Washington state has had a vacancy for the past 14 months, and there is not even a nominee in place. Given the premeditated, partisan stalling in Congress, relief for overworked federal judges is nowhere in sight.
Throughout the third branch of government, the result is a judicial emergency that is defined by the amount of time a vacancy has been open, and the caseload per judge in District Court and per three-judge panel in the Court of Appeals.
For all Article III judgeships (where their duties are defined in the Constitution) there are 103 vacancies with 43 nominees pending — about one out of eight seats on the federal bench.
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Judges, who were already upset with the erosion of their annual pay — about $174,000 for a District Court judge — are understandably grumpy about their workload. Senior judges — in a supposedly inactive status — have carried the day, helping avoid complete gridlock.
Those who ought to be livid are ordinary citizens for whom justice delayed is indeed justice denied. Criminal defendants are guaranteed a speedy trial, but long lines of civil cases waiting for a trial date only get longer.
No apparent solution is in sight. The pushing and shoving in the Senate boils down to conservative Republicans threatening legally dubious filibusters of Democratic efforts to confirm judicial nominees, and cowed Democrats not particularly moving with alacrity. Last week the Senate Judiciary Committee moved seven nominations to the Senate floor, which may or may not be taken up for a vote after the election.
Progressive legal groups have their own frustrations with President Obama, who is viewed as not acting quickly and aggressively enough to goad the committee along and advance nominees.
Doug Kendall, president of the Constitutional Accountability Center, said he is concerned that the recent batch of nominations will be ignored, and the process must start over again in January, even for those who cleared the committee.
Ideological rancor is only a piece of the story. Plain old political payback for perceived slights is at work as well. Republicans complain about Democrats stalling their nominees, although President Bush, and even President Clinton — with a GOP Congress — had higher approval rates than Obama with Democrats in control of both houses.
It can get pretty silly. Recent nominees opposed by Republicans in committee have been confirmed by wide — even unanimous — votes once they belatedly reach the full Senate.
The reality of partisan mischief in the work of the court is even skimpier. Steve Calandrillo, a law professor at University of Washington, points out most three-panel votes in the Court of Appeals are unanimous.
Only a relative handful of cases make the news and shape the stereotypes of, say, the 9th U.S. Circuit Court of Appeals in the West, Calandrillo said.
Congressional politicking with judicial nominations only increases caseloads and keeps citizens from their day in court.
Federal court administrators list the Eastern District of California, the Southern District of Texas, the Western District of Texas, the District of Minnesota, the District of Colorado and the Middle District of Florida among the courts where judicial vacancies have affected caseloads. Hardly a geographically isolated problem.
Lawmakers are playing games with the third branch of government. The nation's founders — vigorously invoked in recent months — would not be amused.