This week, the federal courts pass important milestones when United States District Judge Berle Schiller of the Eastern District of Pennsylvania assumes senior status after twelve years of dedicated service.
Judge Schiller’s action means that the judiciary has 75 openings out of the 858 appeals and district court judgeships and the Eastern District has five out of 22. These vacancies, which are nine percent of the positions system-wide and 22 percent in the Eastern District, erode the delivery of justice. Accordingly, President Barack Obama should promptly nominate, and the Senate must expeditiously confirm, lower court judges, so that the bench will be at full strength nationwide and in the Eastern District.
Since the 1987 fight over Judge Robert Bork’s Supreme Court nomination, Democratic and Republican charges and countercharges as well as non-stop paybacks have plagued judicial appointments, mainly because of our divided government. Although Democrats presently control the White House and the upper chamber, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.
The 179 appeals court judgeships, twelve of which are vacant, are critical, as the twelve regional circuits are the courts of last resort in their regions for 99 percent of cases. Crucial are the District of Columbia Circuit that has openings in three of eleven judgeships and the Tenth Circuit with vacancies in two of twelve.
President Obama has fully consulted by seeking guidance from Democratic and Republican home-state senators prior to actual nominations. Obama has selected 42 consensus nominees who possess even temperament and are very intelligent, ethical, hard-working and independent as well as diverse vis-à-vis ethnicity, gender and ideology. The President should continue cooperating with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who arranges hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their Republican analogues to facilitate appointment. Obama must promptly nominate well qualified candidates for the three vacancies lacking nominees, while the Senate, which has approved 30 judges, should expeditiously process the nine individuals whom he nominated.
The 679 district judgeships, 63 of which are empty, are important because district judges conduct federal trials and determine the facts, while circuit courts uphold 80 percent of their determinations. The chief executive typically defers more to home-state senators’ views because they are familiar with lawyers who have the requisite qualifications.
Senator Bob Casey (D-Pa.) and Senator Patrick Toomey (R-Pa.) have attempted to cooperate in filling vacancies. Earlier this year, Casey stated “it is imperative that the state’s remaining vacancies are filled as quickly as possible to address the shortage of U.S. district court judges.” Toomey concomitantly pledged to cooperate with Casey and observed “We need people in these seats soon. I certainly hope we don’t have to wait until after the election.” However, they have not always submitted recommendations to the White House as promptly as necessary, and this has apparently happened in the Eastern District - although a Toomey-Casey confidentiality agreement makes it impossible to know where candidates, if any, are in the process.
Therefore, the senators must quickly make recommendations. Obama has nominated 150 very capable nominees system-wide but none for the five Eastern District openings. He must swiftly nominate excellent prospects for the 29 vacancies without nominees while considering the Pennsylvania senators’ recommendations and rapidly nominating strong candidates. The Senate has approved 120 judges, so the chamber must promptly consider the 34 nominees who await processing and any nominees Obama suggests, including Eastern District prospects, soon after Obama nominates.
The vacancies in nearly a tenth percent of lower federal court judgeships and in almost a quarter of Eastern District positions undermine swift, inexpensive and equitable case disposition. Thus, President Obama must expeditiously nominate, and senators must promptly confirm, many outstanding judges.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond Law School.
McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.