The Brennan Center for Justice released a new study today in which Alicia Bannon analyzed judicial vacancies in federal district courts. Key finding: "for the first time in 20 years, judicial vacancies averaged more than 60 vacant seats for five straight years from 2009-2013, breaking historic patterns and delaying the resolution of critical legal disputes in civil and criminal trials." You can find the whole report on "Trial Courts in Trouble" here. After the jump I’ve posted the Brennan Center’s press release and an excerpt from the report’s introduction, along with some comments by Jonathan Bernstein.
Since Barack Obama became president, Senate Republicans have increasingly delayed consideration of district court nominees, whereas previously only appeals court and Supreme Court judges could expect a politicized confirmation process.
Senator Chuck Grassley, the ranking GOP senator on the Judiciary Committee since 2011, has claimed that Republicans are voting on more judicial nominees this year than Senate Democrats did early in President George W. Bush’s second term. However, Bannon’s research confirms earlier analysis showing that Obama’s judicial nominees are waiting longer for votes than Bush’s did. Four and a half years into Bush’s presidency, the Senate had placed more of his judges on the bench. Unfortunately, Obama has also been “slower to nominate” judges than either Bush or President Bill Clinton.
Trial Courts in Trouble: An Analysis of Judicial Vacancies in Federal District Courts
July 2, 2013
New York, NY – Unusually high judicial vacancy levels coupled with unprecedented workloads are burdening federal district courts as never before, according to a study released today by the Brennan Center for Justice.
Most controversy over judicial vacancies has focused on federal appeals courts, beset by filibusters and congressional inaction. This analysis shows trial courts face similar challenges.
In fact, judicial vacancies have remained uniquely high throughout Barack Obama’s presidency, with annual vacancies averaging significantly higher than those experienced during George W. Bush’s presidency.
Our study shows that for the first time in 20 years, judicial vacancies averaged more than 60 vacant seats for five straight years from 2009-2013, breaking historic patterns and delaying the resolution of critical legal disputes in civil and criminal trials.
“Our trial courts are in trouble,” said Alicia Bannon, Counsel at the Brennan Center for Justice. “As seats remain unfilled, millions of Americans who rely on district courts are being denied the justice they deserve. District courts can no longer wait. The President and the Senate must find a way to fill these crucial seats.”
Among the study’s key findings:
As of July 1, 2013, there were 65 district court vacancies out of a total of 677 judgeships-a 10 percent vacancy rate, with four additional vacancies expected in the next two weeks and 23 nominees pending before the Senate. Contrast that to the 4.4 percent average district court vacancy rate that President George W. Bush experienced during his fifth year in office.
The average per-judge caseload in 2009-2012 was 13 percent higher than the average for the preceding four years. Had all vacancies been filled between 2009 and 2012, judges would have had an average of 42 fewer pending cases each year.
Judicial vacancies are particularly harmful in some districts. Analysis shows that judicial emergencies-a designation of districts with an acute need for judges- have been higher in 2010-2012 than at any other point since 2002.
Excerpt from the introduction to “Trial Courts in Trouble” (emphasis in original):
This analysis examines data on district court vacancies and judicial workloads since 1992. Its findings suggest that judicial vacancy levels are sufficiently high that it is affecting the functioning of our courts.
Breaking with historical patterns, district court vacancies have remained high throughout Barack Obama’s presidency. District courts typically see brief peaks in vacancies after a presidential election, followed by a sharp decline in subsequent years. Yet, during the Obama administration, after district court vacancies spiked in 2009 they never returned to their previous level and, in fact, have grown further. For the first time since 1992, the average number of district court vacancies has been greater than 60 for five straight years, from 2009-2013.
Together, high vacancy levels and heavy caseloads are leaving sitting judges with unprecedented workloads. Counting both full-time active judges and part-time senior judges, the number of pending cases per sitting judge reached an all-time high in 2009 and was higher in 2012 than at any point from 1992-2007.
Vacancies are hurting districts with the greatest needs. Judicial emergencies, a measure by the Administrative Office of the United States Courts of vacancies in districts with the most acute need for judges, have been higher in 2010-2012 than at any other point since 2002 (the last year for which comparable data is available).
These findings demonstrate the urgent need for the President and Senate to act to fill district court vacancies. Indeed, our findings suggest that to fully address the increasing district court workload, more judgeships are required – further highlighting the importance of filling vacant seats now.
From Jonathan Bernstein’s blog post on the report:
Yes, there can be a policy effect of having Democratic-appointed compared to Republican-appointed judges even at the trial court level, but it’s certainly a lot less important. And so, until 2009 filibusters were unheard of for district court judges, and senators of both parties usually cooperated with the president to identify judges. […]
That’s all broken down now. Republicans have not been unified against all district judges, but they have made confirmation a much more difficult hurdle, with most Republicans requiring 60 votes for confirmation […]
Bannon points out one more important component that gets less attention. It’s not only about obstructing existing vacancies; but also about the total number of federal judges. As she details, from 1961 through 1990, Congress regularly added seats to keep up with the population, but that slowed during the Clinton presidency and ground to a complete halt after 2002.
The result is justice delayed … and delayed … and delayed.