November 2010

Pressure is mounting on the lame duck Congress to act on pending judicial nominees. Senate Judiciary Chairman Patrick Leahy released a statement urging his fellow Senators to consider 20 nominations during the lame duck session, sixteen of which have already been approved by the Judiciary Committee. Sen. Majority Leader Harry Reid is lining up signatures for a cloture petition to force a vote on the confirmation of four long delayed judicial nominees, all of whom had to be re-nominated after their nominations expired. Meanwhile, two former federal judges, Abner J. Mikva, appointed to the U.S. Court of Appeals for the D.C. Circuit by President Carter, and Timothy Lewis, appointed to the federal bench by President George H.W. Bush, writing in Politico, called for action on the nominees.

The Judiciary Committee considered several new nominees this week, and President Obama chose six nominees for seats on the U.S. District Court, even as new vacancies were announced in Kansas and D.C.

Senate Judiciary Chairman Patrick Leahy urged his colleagues to confirm 20 nominees during the lame duck session. Sixteen of those nominatees have already been approved by the Judcidiary Committee.

Leahy, in a statement released today, noted the growing number of vacancies on the federal bench, and called on the delays to cease:

Regrettably, the Senate is not being allowed to consider the consensus, mainstream judicial nominees favorably reported from the Judiciary Committee. There is no good reason to hold up consideration for weeks and months of nominees reported without opposition from the Judiciary Committee. I have been urging since last year that these consensus nominees be considered promptly and confirmed.

Abner J. Mikva, appointed to the U.S. Court of Appeals for the D.C. Circuit by President Carter, and Timothy Lewis, appointed to the federal bench by President George H.W. Bush, write in commentary for Politico that obstruction of judicial nominees "would be outrageous at any time. But it is especially shameful now, because many of these qualified nominees received bipartisan support when nominated and were then approved by the Senate Judiciary Committee with broad support. Yet they have waited more than a year to be confirmed because the Senate never put their nomination to a vote."

Mikva and Lewis continue:

With the Senate now back for the lame-duck session, political pressure on nominations may not be so intense. This is the time for the Senate to return to an effective process for confirming judges - one that can eliminate the appearance of excessive partisanship and apply to both Democratic and Republican administrations.

Earlier this fall, Mikva and Lewis joined a group of former federal court judges in sending a letter to Senate leaders urging action on judicial nominations. "At this moment, our courts are overburdened and increasingly certain vacancies are being designated as ‘emergencies' by the Administrative Office of the Courts because of the length of time the court has been without a judge. This situation is untenable for a country that believes in the rule of law." U.W. Clemon, former chief judge of the U.S. District Court of the Northern District of Alabama, John J. Gibbons, former chief judge of the U.S. Court of Appeals for the Third Circuit, William Steele Sessions, former chief judge of the U.S. District Court of the Western district of Texas, and Patricia Wald, former chief judge of the U.S. Court of Appeals for the D.C. Circuit, also signed the letter. The judges' letter is available here.

In a guest post for The Hill's Congress Blog, David Brodsky, a New York lawyer and member of the ACS Board of Directors, calls the rising number vacancies on the federal bench a "crisis" that "will have direct impact on thousands of ordinary Americans who could see justice significantly delayed or denied in cases ranging from claims of employment discrimination to corporate malfeasance."

Brodsky continues that the primary reason for the "judicial vacancy crisis is the Senate's ongoing partisan and unconscionable delays that have prevented many judicial nominees from coming to a vote by the full Senate and led to a record low confirmation rate. To date, the Senate has confirmed fewer than half of the judicial nominees made by President Obama. By contrast, at this point in the 107th Congress, the Senate had confirmed 61 percent of Bush's judicial nominations. Currently, there are 48 pending nominations, of which 25 are waiting for a vote on the Senate floor."

For more information on federal court vacancies and the status of judicial selections visit JudicialNominations.org, a Web-based project of ACS.