Last year, U.S. District Judge Joseph Bataillon spoke at the University of Nebraska-Lincoln’s College of Law and talked about a big problem for our federal courts. The nation’s courts are heavily burdened, he said, by the backlog and delay in confirming federal judicial nominees.
At that time, 79 seats stood vacant in the district courts and circuit courts of appeals. That was about 10 percent of all federal judgeships.
Of the 79 vacant judgeships, Bataillon said, 34 were classified as “judicial emergencies,” meaning the caseloads were especially high or that the seat had been vacant for longer than 18 months.
Now there’s a new vacancy. Bataillon, who was appointed by President Bill Clinton, announced this week that he will retire from regular active service in October 2014.
This means that the process for choosing Bataillon’s successor may wind up providing the latest illustration of Washington’s abysmally slow confirmation process.
By the latest count, there are 92 current vacancies for district and appeals court seats (up from the 79 mentioned by Bataillon just last year), and 50 nominees are pending before the Senate.
About one-third of the 92 vacancies involve seats falling into the “judicial emergency” category. In at least two instances, out-of-state judges have flown in to handle cases in especially hard-pressed judicial districts.
The delays for some seats, especially in Arizona, California, Texas and North Carolina, have been exceptionally protracted and politically divisive.
Judicial nominations can become a tug of war between senators of one party and a president from the other party. An analysis by the American Bar Association notes that even “if the nominee reaches the (Senate) floor, the vote may be filibustered or never scheduled. Delays and crippling vacancies result.”
An additional factor has been the lengthy vetting process by the White House. The Obama administration has often been egregiously slow in deciding on its nominees not only for the courts but for non-judicial positions as well.
It’s encouraging that at this early stage, U.S. Sen. Deb Fischer, Nebraska’s junior senator, promptly issued a statement thanking Bataillon for his service and saying she looks forward to working with Nebraska Sen. Mike Johanns “to recommend a qualified replacement to the president.”
In his 2012 remarks at UNL’s law school, Bataillon himself offered a sensible idea to reduce the confirmation backlog: set a time limit.
The ABA offers some additional ideas worth considering:
>> Schedule up-or-down floor votes for nominees in limbo who were already advanced from the Senate Judiciary Committee with little or no opposition.
>> The Senate majority and minority leaders should agree to prioritize filling positions where judicial emergencies exist and shorten the period of time between nominations and votes.
>> The White House should offer a nominee for every open seat on the bench, something it currently fails to do.
Political jockeying and bureaucratic slowness are nothing new in Washington. But it’s time for our leaders to agree to sensible reforms and remove this needless weight from an already overburdened court system.