Last week, the federal judiciary marked significant milestones when United States District Judge Garland Burrell of the Eastern District of California took senior status following two decades of valuable service.
His decision leaves the bench with 77 vacancies in the 858 appeals and district court judgeships and the Eastern District with one in six. These openings, which comprise nearly 10 percent of the judgeships nationwide and 17 percent in the Eastern District, undermine the delivery of justice. Therefore, President Barack Obama must swiftly nominate, and the Senate promptly confirm, appellate and district judges, so that the vacancies will be filled system-wide and in the Eastern District.
The 179 appellate judgeships, a dozen of which are empty, are crucial, because the circuits are the tribunals of last resort in their areas in all but one percent of cases. Most troubling are the D.C. Circuit with vacancies in three of eleven positions and the Tenth Circuit which experiences openings in two of twelve.
Obama has thoroughly consulted by soliciting advice from Democratic and Republican home-state politicians before official nominations. He has tapped 41 nominees of balanced temperament, who are smart, ethical, diligent and independent as well as diverse in terms of ethnicity, gender and ideology. Obama should keep working with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who schedules hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who sets chamber debates and votes, and their GOP counterparts to speed confirmation.
Obama must rapidly nominate excellent prospects for the five seats without nominees, and the Senate, which has confirmed 30 judges, should quickly review the seven current nominees. On June 13, Senator Mitch McConnell (R-Ky.), the Minority Leader, announced that he was invoking the Thurmond Rule and would attempt to block every Obama appellate nominee until the November election. If he does not relent, Reid should petition for cloture and enough Republicans should join him to force up or down votes on the four nominees awaiting floor votes.
The 679 district judgeships, 65 of which are open, are essential, as district judges try federal cases and ascertain the facts, while appellate courts affirm four-fifths of their decisions. California Democratic home-state Senators Diane Feinstein and Barbara Boxer have coordinated to recommend candidates. Earlier this year, both senators agreed to support Judge Troy Nunley, an experienced Sacramento County Superior Court Judge. A minority of the ABA Standing Committee on the Judiciary rated the jurist well qualified, its highest ranking, and a majority rated him qualified. On June 25, the President nominated Judge Nunley.
The Judiciary Committee must promptly schedule a hearing and panel vote for Judge Nunley, while the entire Senate should expeditiously set a floor debate and vote soon thereafter. Several reasons countenance swift processing of Judge Nunley. First and foremost, Eastern District judges carry one of the heaviest caseloads in the nation, twice the number as most judges. The burgeoning dockets prompted the U.S. Judicial Conference, the federal courts policymaking arm, to recommend congressional authorization of six new judgeships, suggestions premised on conservative estimates of case and work loads.
Chief Justice John Roberts emphasized the problem of districts with huge dockets in his 2010 year-End Report on the Federal Judiciary, while he urged Democrats and Republicans to fill the openings. Second, a vacancy in one of the Eastern Districts six active judgeships can be crucial, in sharp contrast, for example, to the Central District which has 27 active judgeships. Operating without a sixth of the judicial complement imposes unnecessary stress on the courts other jurists and complicates prompt, inexpensive and fair case resolution. Third, judicial confirmations slow in a presidential election year, and this could stall Judge Nunleys appointment. Thus, the Senate must quickly process the nominee, so that the Eastern District will have a full complement of judges.
Obama has tendered 153 highly competent district nominees. The White House must quickly nominate talented individuals for the 37 openings that lack nominees. The Senate has approved 121 judges, so it must swiftly review the 28 nominees who await consideration and any nominees whom Obama proposes.
The openings in almost ten percent of federal judgeships and in a sixth of Eastern District posts erode justice. Accordingly, President Obama must quickly nominate, and senators rapidly approve, numerous fine judges.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond Law School.