Bipartisanship needed to resolve the vacancy crisis in the nation’s courts

In his “Year-end report on the Federal Judiciary,” Chief Justice Roberts rightly called attention to the problem facing many overburdened district and circuit courts across the country. The rise in judicial vacancies — which topped 110 in 2010 — and an increasing number of judicial emergencies are of great concern to all Americans who seek justice from our courts.


Unfortunately, the last Congress saw a dramatic departure from the Senate’s long-standing tradition of regularly considering consensus, noncontroversial nominations. The Senate’s action to confirm just 60 district and circuit court nominations in the 111th Congress marked a new chapter in what Roberts calls the “persistent problem” of filling judicial vacancies. This sets a new and troubling precedent in considering appointments to the federal court. Vacancies on our federal courts that have reached historically high levels are resulting in overburdened courts that now face crippling caseloads.

Nearly all of the district and circuit court nominations considered by the Senate in the last Congress were confirmed with overwhelming and bipartisan support. Yet nearly a third of these nominations — 19 — were held up for more than 100 days, only to be confirmed unanimously. Among these nominations was that of Kimberly Mueller, nominated to fill a vacancy in the Eastern District of California. Roberts cited this confirmation as one of the most sorely needed. Yet for more than seven months, the Senate was prevented from considering the nomination to fill this vacancy. Mueller’s nomination was unanimously reported by the Judiciary Committee in May; her nomination was unanimously confirmed on Dec. 16. No senator objected to her qualifications, her record or her fitness to serve. This sort of delay is the real crisis facing the federal judiciary.

Lifetime appointments to the federal bench should not be granted without due consideration. No senator, Democrat or Republican, should simply rubber-stamp the nominations of any president. In the first Congress of the Bush administration, a Democratic majority in the Senate worked to confirm 100 judicial nominations, turning the page on the pocket-filibusters of the 1990s. We proceeded with regular consideration of non-controversial, consensus nominations, most of which received unanimous support in the Senate. We confirmed 20 nominations during the lame-duck session in 2002. These 20 confirmations included two controversial circuit court nominations which were favorably reported by the Senate Judiciary Committee during that lame-duck session. With the return of 19 judicial nominations favorably reported by the Judiciary Committee — including 15 nominations with overwhelming bipartisan support — at the end of the last Congress, progress to fill critical vacancies on the courts has been further stalled.

A new Congress brings new opportunities to bridge the gap and restore bipartisanship and civility to our debates. The consideration of judicial nominations is one area where partisanship has been a destructive influence. We need good and capable men and women to be willing to serve as judges to protect the rights of all Americans and uphold the rule of law. We have an opportunity to turn the page, and work together to confirm the many qualified nominees President Obama has sent to the Senate.

The tragedy earlier this month in Tucson has been a grim reminder of the serious issues facing our courts. Judge John Roll was known as a fair-minded and impartial jurist. He was a tireless advocate for improved resources to enable the federal judiciary to handle mounting caseloads. We need to come together to address the needs of the federal judiciary — in Arizona, and across the country.

The American people turn to our courts for justice. And the Senate, for its part, must return to the time-honored traditions of the Senate and work together to secure the confirmation of the president’s judicial nominations. Judicial vacancies hinder the federal judiciary’s ability to fulfill its constitutional role. Working together, we can restore the judicial confirmation process.

Sen. Leahy is chairman of the Senate Judiciary Committee.