Empty Benches, Empty Decisions

By Rachel Pomerantz

Rachel Pomerantz is a freshman at the University of Pennsylvania.

Since Saturday, February 13, one federal judicial vacancy has dominated all news circles, both judicial and lay: the Supreme Court seat held by conservative lion, Antonin Scalia. However, the number of federal judicial vacancies at the district and appeals court level represents a growing crisis that has flown under the radar and will become even more significant due to the vacancy on the highest court in the land.

Simply put, there is an unacceptable number of empty seats on federal benches. There are 81 current vacancies, one-third of which have lasted for more than 18 months. In fact, the Judicial Conference, the policy-making arm of the federal courts, has designated 31 of these vacancies as “judicial emergencies.” [1] The system is designed to have a certain number of judges, not empty seats for years on end.​

This problem extends to the federal district courts as well. The GOP Senate has allowed the fewest lower court appointments since President Eisenhower. At least 7 nominees, filling vacancies created in 2013 and 2014, have been waiting for over year. All in all, there are 62 vacant judgeships on US District Courts and 10 in other federal courts (Federal Claims, International Trade). [4]
 
Needless to say, fewer judges on the court means more work for the remaining ones. The average federal judge has a massive caseload of 500 to 600 cases, with the judges in some districts that have multiple vacancies facing annual caseloads of over 1000. [5]
 
It is baffling trying to understand why the GOP has systematically preventing President Obama’s judicial nominees. They have decided that any and all Obama judicial nominees are to be denied proper confirmation hearings. The Republican leadership in the Judiciary Committee and Senate are blocking nominees supported by the senators from that court’s state. [6] For example, the Judiciary Committee blocked three nominees for federal district courts in Texas even though the two Republican senators from Texas supported those nominees.
 
With the passing of Justice Scalia, the even number of Supreme Court justices creates a bigger crisis for the lower federal courts. For any of the cases that would have been decided 5-4 with Scalia in the majority, they will now be tied at 4-4. If the case came from a lower federal court, the court issues a joint opinion that defers to the ruling of the appellate court. Though these decisions do not have national implications as regular Supreme Court decisions do, this means that for as long as there is a vacancy on the Supreme Court, the federal Courts of Appeals are basically the final arbitrator of cases that would yield a 4-4 split on the Supreme Court.
 
The Senate needs to get back to work. They are constitutionally obligated to “advise and consent” the president’s nominees for the federal judiciary. Understandable, if the president nominates someone who is under-qualified or ideologically opposed to the Senate majority, then senators might not want to vote to confirm that appointee. But the Senate is nowhere near that point yet. They are not holding the hearings necessary to facilitate a debate about a nominee’s qualification for the appointment. Instead, men and women eager to serve this country as arbitrators of the Constitution and the law are in an indefinite purgatory until something is done.
 
​
[1] Administrative Office of the US Courts. "Judicial Emergencies." United States Courts. February 19, 2016. Accessed February 19, 2016. http://www.uscourts.gov/judges-judgeships/judicial-vacancies/judicial-emergencies.
[2] Eilperin, Juliet, and Paul Kane. "Supreme Court Nomination Process Sure to Be an Epic Debate." Washington Post. February 14, 2016. Accessed February 18, 2016. https://www.washingtonpost.com/politics/supreme-court-nomination-process-sure-to-be-an-epic-debate/2016/02/14/63cd2cd6-d32a-11e5-b195-2e29a4e13425_story.html.
[3] Savage, Charlie. "Before Scalia’s Death, a Clash Between G.O.P. and Obama Over Appellate Judges." The New York Times. February 15, 2016. Accessed February 19, 2016. http://www.nytimes.com/2016/02/16/us/politics/before-antonin-scalias-death-a-clash-between-gop-and-obama-over-appellate-judges.html?_r=1.
[4] "Judicial Vacancies." United States Courts. 2016. Accessed February 20, 2016. http://www.uscourts.gov/judges-judgeships/judicial-vacancies.
[5] Bendery, Jennifer. "Federal Judges Are Burned Out, Overworked, and Wondering Where Congress Is." Huffington Post. October 01, 2015. Accessed February 17, 2016. http://www.huffingtonpost.com/entry/judge-federal-courts-vacancies_us_55d77721e4b0a40aa3aaf14b.
[6] United States of America. Senate. Senate Judiciary Committee. By Executive Business. November 13, 2014. Accessed February 18, 2016. http://www.judiciary.senate.gov/imo/media/doc/Results of Executive Business Meeting 11-13-14.pdf.

Photo Credit: Flickr User Tidewater Muse
 
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.