The federal courts face a crisis that has received very little attention in the mainstream press: a shortage of judges.
Unlike most state court judges, federal court judges must be nominated by the president “with the advice and consent of the Senate.” The Senate holds hearings and if it finds the nominee satisfactory, a majority of members will vote to make him or her a federal judge. Once a person becomes a federal judge, he or she has the job for life, unless he or she retires, resigns, or commits “treason, bribery, or other high crimes and misdemeanors” that result in impeachment and conviction. Over the past 22 years, just two federal judges have been impeached and convicted. So unless that judge chooses to retire, he or she will likely die in office.
That seems to imply that federal courts have few vacancies to be filled. Compared to the judges’ overall numbers, that may be the case; however, there are enough vacant slots to be causing some serious delays in our justice system. Currently, President Obama has 90 vacant slots to be filled, far more than under President Bush. Some of these slots have been open for three years. The crisis has been so bad that even Chief Justice John Roberts commented upon it at the end of last year, stating that it “has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened by extraordinary caseloads.” Indeed, the effects are being felt across the country. In Arizona, the lack of judges to hear criminal cases led the Chief District Judge to declare an emergency and extend the time limit for bringing a criminal suspect to trial — from within 70 days of the indictment to 180 days. And here in Texas, there are two vacancies and three “semi-retired” judges in the Western District (which includes El Paso, Pecos, Midland, Waco, and Alpine) and four vacancies and seven “semi-retired” judges in the Southern District. Their district courts are overwhelmed by immigration cases and feeling the effects of the shortage.
What are the reasons behind so many vacancies? Most lies in partisan politics. Partisan politics has always existed in the selection of judges, as both national parties seek to place their ideological stamp on the judges who will hear cases that could affect the nation. Unless the Supreme Court agrees to hear a case, federal judges have the last word in how federal law is interpreted. However, the partisan problem seems especially acute now. Qualified judges are not even permitted an up-and-down vote in the Senate. Obama nominees take more than 200 days to be confirmed, compared to 114 days under President Reagan. The Senate’s role is to give advice and consent, not to refuse to let the nominee be considered at all.
This problem reaches down to the lowest levels. A federal criminal defense attorney wants his clients to have their day in court as quickly as possible. He does not want his client to face an unnecessary delay before finding out if he will be convicted of drug possession or a white collar crime. The client also deserves to have a judge who is fully knowledgeable of the case — which may be more difficult if the judge is overburdened and overwhelmed by other cases.
The good news is that members of the Senate from both parties appear to be working toward a compromise that will allow more judges to be confirmed. Let’s hope that it puts an end to the partisan wrangling. The federal courts are the backbone of the judicial system and federal judges have a vital role. Any judicial vacancy should be filled quickly, for the sake of their fellow judges and those whose cases come before their court.