A gridlocked Senate and a distracted president could delay securing replacements for a legion of retiring federal judges around the country.
More than 50 members of the federal bench have been placed on senior status, in states ranging from Florida to Texas and Pennsylvania to Washington. Another from California will join the roster next month.
Many are still carrying full caseloads, and their successors might not be on the horizon anytime soon.
The rest of this year is already a washout, as Washington is all-consumed with the November elections. Next year, no matter who wins the presidency and control of the Senate, with its advise-and-consent role on judicial nominations, the confirmation pace could remain turgid.
“It’s going to be a problem,” said prominent Fresno, Calif., attorney Anthony Capozzi, a former federal prosecutor. “It’ll take at least a year. It will be late next year, no matter who is president.”
Moving a judge to senior status means the slot has a vacancy. But a number of senior judges are still carrying full caseloads. That can be punishing, and hard to sustain.
In California, Fresno-based U.S. District Judge Anthony W. Ishii, who is moving into semi-retirement this fall, handles cases in an 11-county region. At 66, he said he will voluntarily retain a full workload.
The Eastern District of California is already among the busiest in the nation. The judges handle more than 7,000 civil and criminal cases annually, and the flow never stops, regardless of who’s on the bench.
Ishii and U.S. District Judge Lawrence O’Neill currently handle more 1,151 cases, more than double the national average of 505.
“Nobody should expect Judge Ishii to continue to work at his current pace when he goes to senior status,” O’Neill said. “We don’t want him to jeopardize his health by maintaining this pace.”
Ishii said that he was “hopeful, but not optimistic,” that the process to replace him will be faster than his own experience, which took nearly two years after his name was floated.
“I am anticipating some time in 2013,” he said.
Federal district and appellate courts currently have 76 vacancies, according to the Administrative Office of the U.S. Courts. President Barack Obama has offered nominations for 31, a pace slower than his recent predecessors.
By their fourth August in office, President Bill Clinton had nominated 236 judges and President George W. Bush had nominated 225, according to a study by the Alliance for Justice, a nonprofit, liberal legal advocacy group.
Obama has nominated only 196 during a comparable period.
Once they reach the Senate floor, though, U.S. District Court nominees tend to fare well. The Senate has confirmed 83 district court nominees this Congress.
Nearly all were approved by voice vote or by an overwhelming margin.