The Vacancy Crisis: Obama Has Made Fewer Judicial Nominations Than Any President in Recent History-With Disastrous Consequences

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This summer wasn't easy for the Delaware Federal District Court. With one long-standing vacancy and an impending retirement, the four-seat court was hugely backlogged. "Because of the Speedy Trial Act," says Caroline Fredrickson of the American Constitution Society, "they've had to take their whole criminal caseload and outsource it to other federal courts." if was a drastic move, but the only way Delaware could have handled its growing load of civil cases--judicial business that concerns people who have lost jobs, homes, and livelihoods and need the court's assistance. Thanks to this "fun damental breakdown in the judicial confirmation process," she says, "people are waiting and waiting, and yet there is no justice."

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This isn't an isolated problem. Lower courts in the United States have more than 100 vacancies, with 20 empty seats on the U.S. Circuit Courts of Appeals and 84 on the District Courts. According to the Alliance for Justice, 22 state courts have openings that are classified as "judicial emergencies." These are seats that have been vacant for more than 18 months, with each remaining judge responsible for hundreds more filings. Moreover, since President Barack Obama entered office last year, the number of emergencies has more than doubled--with disastrous consequences for the legal system. On the U.S. District Court for the Central District of Illinois, for example, three vacancies have left just one remaining judge responsible for an additional 1,170 filings. With fewer judges available to hear a growing number of cases, justice is delayed--and often denied--for thousands of Americans.

What happened over the last two years to throw the federal court system into crisis? Part of the problem is politics. Traditionally, the confirmation process has been an area of legislative deference to the president, with the Senate accepting most of the president's choices for the federal judiciary. In the current Congress, however, Republicans have turned this on its head, refusing to confirm the president's nominees as a matter of course. GOP senators have held up nearly every vote of consequence through filibusters, holds, and other parliamentary maneuvers. Indeed, the 111th Congress is on track to top the 110th Congress (which also had a Republican minority) for the highest number of cloture votes--which includes judicial confirmation votes. In their parliamentary war against the Democratic majority, Republicans have turned the judicial confirmation process into another battleground.

The numbers bear this out. According to a recent report from the Center for American Progress, the Senate has confirmed a scant 42.8 percent of President Obama's judicial nominees. By contrast, the Senate confirmed 79.3 percent of George H.W. Bush's nominees, 84 percent of Bill Clinton's, and 86.8 percent of George W. Bush's. Indeed, the Alliance for Justice found that this holds true even when you account for the fact that Obama has only served two years; by the end of his first year in office, Obama had fewer nominees confirmed than any of the last five presidents at that point in their presidency. Only a handful of the 47 lower-court nominees awaiting confirmation have come up for a vote on the Senate floor, while the majority have been held up for months by holds and filibusters. For example, Amy Totenberg--nominated to fill a 22-month-old vacancy on the U.S. District Court of Northern Georgia--has been awaiting a confirmation hearing since March. Granted, Senate Majority Leader Harry Reid hasn't put much emphasis on confirming judges. Still, even Reid's reticence is a product of the relentless obstructionism exercised by the Republican minority; floor time for judicial confirmations is hard to find when you need that time to hold cloture votes and break anonymous holds.

Senate Republicans, however, aren't the only ones to blame for the vacancy crisis. The Obama administration has displayed a strange lack of urgency when if comes to nominating people to the federal bench. …