On this Thanksgiving, federal circuit and district court judges should give thanks that many of the 90 lower court openings which the judiciary had encountered for practically a half decade have been filled. Those vacancies, which first climbed to 90 in August 2009, remained around that number until 2014. However, it is now uncertain precisely how many of those open judgeships the U.S. Senate and President Obama will soon fill, especially given the mixed record of cooperation on judicial appointments compiled in the Obama administration’s first seven years and the Republican Senate majority’s inaction across 2015.

Democrats and Republicans have collaborated somewhat in the area of judicial selection. The federal judiciary currently experiences 66 openings, while President Obama has nominated 27 candidates for those vacancies. The bench should be thankful that the administration has nominated, and the Senate has confirmed, two superb Supreme Court Justices, 54 excellent appellate judges, and 261 fine district judges.

ADVERTISEMENT
Obama has vigorously pursued the guidance and support of Democratic and Republican elected officials prior to actual nominations and has proposed nominees of balanced temperament, who are smart, diligent, independent and ethical, as well as diverse in terms of ethnicity, gender and ideology. Numerous observers criticized Obama for nominating too slowly early in his administration. However, the chief executive has picked up the pace and has recommended more nominees than President George W. Bush at the same juncture in his presidency.

The judiciary should also thank Sen. Charles GrassleyCharles (Chuck) Ernest GrassleyHow House Republicans scrambled the Russia probe Dem lawmaker spars with own party over prison reform Overnight Energy: Pruitt taps man behind 'lock her up' chant for EPA office | Watchdog to review EPA email policies | Three Republicans join climate caucus MORE (R-Iowa), the chair of the Judiciary Committee, and Sen. Patrick LeahyPatrick Joseph LeahyDem senator mocks Pruitt over alleged security threats: 'Nobody even knows who you are' Pruitt tells senators: ‘I share your concerns about some of these decisions’ Protesters hold up 'fire him' signs behind Pruitt during hearing MORE (D-Vt.), the ranking member, for facilitating committee review and Sen. Henry Reid (D-Nev.), the Minority Leader, for attempting to work closely with Republicans on approving nominees. However, Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellGOP lawmakers want Trump to stop bashing Congress Parkland father calls out Trump, McConnell, Ryan after Santa Fe shooting Overnight Finance: House rejects farm bill in conservative revolt | NAFTA deal remains elusive as talks drag on | Dodd-Frank rollback set for House vote MORE (R-Ky), the Majority Leader, has permitted only ten floor votes on judicial nominees all year. One recent sign of collegiality is that the Senate confirmed three judges in October, but the upper chamber has approved merely one over November. 

The federal courts should as well offer thanks that the Senate Democrats exploded the “nuclear option,” two years ago.  That measure permitted dozens of nominees to receive cloture and confirmation votes, but detonation infuriated Republicans who still argue that the change violated Senate rules and inappropriately allowed votes on many nominees. The judiciary should be thankful that Obama and McConnell have called for more bipartisanship in the remainder of this year and across 2016. One major difficulty that bipartisanship could remedy is the numerous vacancies which threaten justice.

Notwithstanding the collegial endeavors to fill the numerous vacancies reviewed above, the Senate would have approved many more judges, had Republicans cooperated more thoroughly with Democrats. For most of the 114th Congress’s first session, McConnell coordinated little by refusing to schedule nominee floor votes. Indeed, the Senate has confirmed merely ten nominees all year, the fewest in several decades. Democrats and Republicans must collaborate better in confirming judges because functioning with many vacant judgeships can undercut courts’ efforts to promptly, economically and fairly resolve cases.

The federal bench, which has been working absent a large percentage of its authorized active judgeships, seemingly can be thankful for much this Thanksgiving. Nevertheless, the confirmation process will only improve if Democrats and Republicans work together in the remainder of the 114th Congress for the good of the courts and the nation.

Tobias is the Williams Chair in Law at the University of Richmond.