Failure to confirm judges goes far beyond Senate, Court chambers

“The cornerstone of the American judicial system is the trial courts,” the late Chief Justice William H. Rehnquist said, “in which witnesses testify, juries deliberate, and justice is done.” But four years of delays in nominating and confirming district judges threaten the ability of the federal trial courts to carry that weight. To keep witnesses testifying, juries deliberating, and justice being done in the federal courts, we need to rebuild an efficient machinery for putting trial judges on the bench.

The total number of days that district judge vacancies went unfilled across the country during President Obama’s first term was greater than 100,000 — representing more than 275 lost years of active judicial work. In many districts, the vacancies mean motions will age for months or years before getting judicial attention, and trial dates will be set well into the future only to be postponed when they arrive due to the priority given by law to criminal process. For civil litigants, such delays translate into increased costs and uncertainty about whether cases will be adjudicated at all.

Failing to confirm trial judges also wastes public money at a time of enormous fiscal pressure. Any claim to savings achieved by avoiding judicial salaries is penny wise and pound foolish. Instead, delays leave taxpayers on the hook for empty courtrooms and an idle court apparatus. Based on Congressional Budget Office estimates, the net waste of public resources from vacant district judgeships during President Obama’s first term was approximately $160 million. Inflated private litigation costs — from lawyers having to prepare for the same trial multiple times because of delays, for example — surely dwarf this figure.

So it is good news all around that the Senate may have pulled back from the brink. The filibuster reform package agreed to last month makes a special provision for floor consideration of nominations for district judgeships. Specifically, the agreement limits the amount of floor debate time that a Senator can threaten to consume even where there is overwhelming support for the nominee. This should help Senate Majority Leader Harry Reid bring these nominations for trial judgeships to prompt confirmations by consensus. It is an important step forward — but it is just a first step given that floor delays accounted for only about 20 percent of the lost years of judicial work.

It is time for the president and the Democrats in the Senate to insist on a more efficient process for confirming federal district judges. District court nominees have become mired in the confirmation mess because they follow the same procedural path as appellate judges. Yet no one in the Senate or elsewhere has articulated a rationale for politicizing and obstructing trial judge nominations.

The President and Senators must work together to ensure timely district judge nominations, which should include a greater willingness by the White House to call out publicly those Senators of both parties who drag their feet on making recommendations for these judgeships. The Judiciary Committee must process district judge nominees more quickly — consistent with Chairman Patrick Leahy’s dedicated efforts and repeated requests of his Republican committee members.  And Senate leaders must agree to prompt confirmation votes on district judge nominations when they reach the Senate floor.

At its weekly business meeting today, for example, the Judiciary Committee has the chance to take another step forward when it considers nine district judge nominees who testified at confirmation hearings last year. Committee rules allow any member to “hold over” a nomination until the next meeting (or the next week, whichever is longer) for any reason or for no reason. During President Obama’s first term, Republican Senators on the Committee applied this rule to district judge nominations simply to institutionalize delay. There is no reason to renew that practice for another Congress this week.  Instead, the Committee should report these nominees now for prompt consideration by the full Senate.

Returning to a responsible district judge nomination and confirmation process requires a renewed level of cooperation between the parties on a matter that should be nonpartisan and is of existential importance to the courts. Witnesses, juries, and justice writ large are waiting to see whether the political system can muster it.

Shenkman is a fellow and lecturer-in-Law at Columbia Law School’s Center for Law and Politics. He worked on judicial nominations as senior counsel in the Justice Department’s Office of Legal Policy in 2009 and 2010. The views expressed are his alone.

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