Time to confirm more federal judges

“We must redouble our efforts to work with the president to end the longstanding vacancies that plague the federal courts and disadvantage all Americans. That is our constitutional responsibility.” So declared Senate Judiciary Committee Chairman Patrick LeahyPatrick Joseph LeahyNegotiators face major obstacles to meeting July border deadline This week: Congress set for clash on Trump's border request Congress unlikely to reach deal on Trump border bill before break MORE in July 1999.

He was right. To be sure, Leahy said this when Democrats occupied the White House and held the majority in the Senate. But back when when he said it, there were 69 vacancies across the federal judiciary. Today, even though Republicans control the judicial appointment process on Capitol Hill, vacancies are 77 percent higher. That should count for something.


On the other hand, perhaps Leahy meant, without actually saying, that constitutional responsibilities vary depending on which party is in charge. After all, in September 1997, he had said that the “continuing partisan campaign against qualified and fair judicial nominees has to come to an end.” Yet even though vacancies are 26 percent higher today, the partisan campaign against fair and qualified judicial nominees, far from coming to an end, is instead going full steam ahead with his help.

In July 2000, Leahy declared “those fostering this slowdown of the confirmation process” are “risking harm to institutions that protect our personal freedoms and independence.” Again, Democrats were in charge back then. But vacancies are 103 percent higher today. Only 55 percent of the judges nominated by Donald Trump have been confirmed, compared to an average of 74 percent for the previous five presidents at this point.

That is definitely, to quote Leahy, a “slowdown of the confirmation process,” and he is among those fostering it. Surely, the harm done by judicial vacancies to institutions that protect our personal freedoms does not diminish as those vacancies increase. That just makes no sense.

The administrative office of the federal courts designates some judicial vacancies as “emergencies” because they have been open so long. In March 2012, Senate Minority Whip Dick DurbinRichard (Dick) Joseph DurbinNegotiators face major obstacles to meeting July border deadline Senate set to bypass Iran fight amid growing tensions Schumer calls for delay on passage of defense bill amid Iran tensions MORE warned that such judicial emergency vacancies would make the justice system would suffer at every level of government. Back when he said that, 35 judicial emergency vacancies had been open for an average of 725 days. Today, 63 judicial emergency vacancies have been open for an average of 897 days.

The nation is now in the longest period of triple digit judicial vacancies in more than 25 years. Average judicial vacancies under President TrumpDonald John TrumpNew EPA rule would expand Trump officials' powers to reject FOIA requests Democratic senator introduces bill to ban gun silencers Democrats: Ex-Commerce aide said Ross asked him to examine adding census citizenship question MORE are 35 percent higher than during the first two years of President Obama, as well as 49 percent higher than during the entire Obama administration.

At a Senate Judiciary Committee meeting in June 2000, Leahy argued against turning the judicial confirmation process “into a protracted ordeal of unreasonable delay” that has “done enough harm, injured too many people good people, and it must not happen again.” But vacancies are 85 percent higher today than when he said that nearly two decades ago. Yet there is not a whisper from Leahy and his fellow Democrats about harm to institutions, injuring good people, unreasonable delay, or anything.

The solution to this crisis comes from Nan Aron, president of the left wing Alliance for Justice. Writing in the San Francisco Chronicle in July 1999, she argued that the president “has a duty to fill judicial vacancies and appoint jurists who share his views. It is time for fair minded senators to join the president in challenging the delaying tactics. Our nation will be dramatically poorer unless they do.” With judicial vacancies now sitting at 77 percent higher today, that call to action is more urgent than ever.

Thomas Jipping is a senior legal fellow and deputy director of the Edwin Meese Center for Legal and Judicial Studies at The Heritage Foundation.