Study: Judicial Vacancies Are Jamming Up the System

Talmadge Nix, a lawyer with the firm Nix and Poet in eastern Texas, represents a Chinese national who has been sitting in jail for months. Arrested as part of a prostitution conspiracy ring, the woman has a green card and she doesn’t want to plead guilty for fear of how it might affect her immigration status. Her co-defendants who are pleading guilty will be released from prison by the time this woman’s case goes to trial.

“There’s this hammer over her head: plead guilty and you’ll be out of jail,” says Alicia Bannon, author of a Brennan Center for Justice analysis entitled “The Impact of Judicial Vacancies on Federal Trial Courts” out on Monday. The woman’s plight is just one example of a judicial system groaning from a backlog of cases due to the high number of vacancies in federal courts.

Judicial vacancies are a particularly salient issue for eastern Texas, with judges there routinely having to travel more than 350 miles to hear cases, the study found. There are currently 49 U.S. District Court vacancies, compared with 29 such vacancies at an equivalent point in President George W. Bush’s second term.

“In trial courts around the country, vacancies are hurting our courts and individuals that rely on them to protect their rights,” Brennan says. “Delays are common. It’s harder to schedule trials. There are longer wait times to schedule motions. All this adds costs and uncertainty for litigants appearing before the courts. Cases aren’t neglected but they’re certainly being effected.”

Senate Majority Leader Harry Reid last year moved to strip the minority of the ability to filibuster some executive nominations, a move known as the “nuclear option” for the partisan toxicity it invoked in the Senate. That change has helped ease the flow of some confirmations—President Obama has overall confirmed more judges by sheer number to the federal courts than Bush by this point in their presidencies. But Bannon and the Brennan Center are pushing for even more reforms.

As it stands right now, appellate court nominations require 30 hours of debate before confirmation, and lower court judges require two hours. Usually, Democrats yield back their half of that time, but Republicans have often used their time to speak on other issues or the Senate floor stands idle as the clock runs out. Bannon says there should be a “use it or lose it” standard wherein unless senators actually use the time to address the judge under consideration, the rest of the time is yielded back. Such a move would quicken the pace of confirmations, but it also risks further angering the minority. Republicans were so furious at the nuclear option that work in the Senate in the last eight months has come to a virtual standstill, with even the most bipartisan of bills falling victim to partisan sniping.

Bannon would also like to see the so-called “blue slip process” halted or made more transparent. Though it’s not in the official Congressional rulebook, whenever a judicial nomination is pending before the Judiciary Committee, blue slips seeking comment are sent to the offices of the senators where the judge resides. If both slips are not returned, then the nomination does not proceed to a committee vote. Because Republicans have been refusing to return blue slips in a post-nuclear world, judicial vacancies are becoming clustered in Republican states. More than half of vacancies do not have nominees—all in red states where senators have stopped making recommendations to the president. Traditionally, a nomination begins with a senatorial recommendation. Of the total 60 federal vacancies, there are only 27 nominees pending.

Texas, which has two Republican senators, John Cornyn and Ted Cruz, has the most vacancies with 10 empty slots, one of which has been vacant for more than 2,000 days. Six of the 10 seats are “judicial emergencies,” meaning judges now handle more than 600 cases to make up the difference. There is a backlog of more than 12,000 cases in Texas, according to an April report by the Center for American Progress.

All the more reason, Bannon argues, that the practice of blue slipping should end, even though Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, says he opposes any weakening of that particular tradition. “At the very least, senators should be require to explain publicly why they’re holding back returning a blue slip and holding back to make recommendations for new nominations,” Bannon says. “The process should be more transparent.”

Obama, a former constitutional law professor, has made it one of his legacies to fill the federal bench. As the Senate looks increasingly like it might flip, which would all but deprive the President of future confirmations, the odds grow that Democrats push through these two procedural changes and smooth a glide path for a flurry of nominations before the party gives up control of the Upper Chamber.