WASHINGTON — In the year since Senate Democrats — led by Oregon’s Jeff Merkley — changed the rules on filibustering executive nominees, including federal judges below the U.S. Supreme Court, the number of empty judgeships has dropped to the lowest level since the first year of Barack Obama’s presidency.
As of Friday, there were 56 vacancies, the lowest total since the month Obama took office, according to the Administrative Office of U.S. Courts. Only 19 of those were considered judicial emergencies, a designation for vacancies that have sat empty so long or in very busy courts as to create oversized caseloads for the remaining judges. That matches the lowest total since January 2009.
For most of Obama’s administration, the number of judicial vacancies has been 90 or higher, said Carl Tobias, a law professor at the University of Richmond who is an expert on judicial nominations.
“The numbers are much better than they were, and I think that’s substantially attributable to the (rules) change,” said Tobias. “That enabled the Democrats to overcome the obstruction by the Republicans.”
If too many judgeships sit empty, the administration of justice is impaired, he said.
“Basically, it slows everything down. It imposes more duties and more work on fewer judges,” he said. Criminal cases get priority because the Speedy Trial Act imposes time limits, he said, so civil cases have trouble securing trial dates and often experience postponements and long delays.
Frustrated with what he viewed as a dysfunctional Senate, Merkley has worked with Sen. Tom Udall, D-N.M., to improve the upper chamber’s productivity since their early days in the Senate. Several times, the would-be reformers were rebuffed by Majority Leader Harry Reid, D-Nev., who preferred striking deals with Minority Leader Mitch McConnell, R-Ky., to secure highly contested confirmations rather than changing Senate rules.
For Reid and other Democrats, the tipping point came when Republicans blocked two Obama nominees in November 2013, including Patricia Ann Millett for one of three vacant seats on the Washington, D.C., Circuit Court of Appeals. Using the “nuclear option” to change Senate rules with only 51 votes — so-called because critics suggested that using it would lead to devastation for both those in the majority and minority — Democrats made it so that it no longer took 60 votes to advance and confirm nominees other than those to the U.S. Supreme Court.
“Providing a fair Senate vote on President Obama’s nominees to fill three vacancies on the D.C. Circuit Court — the second most important court in the country — was crucial to restoring the Court’s integrity,” said Merkley in a prepared statement. “The Senate has also more than doubled the pace of votes on judicial nominations. Enabling these nominees to receive fair up-or-down votes will have profound effects on issues that affect Americans every day, from clean air to women’s health to keeping Wall Street in check.”
According to Merkley’s office, the pace of judicial confirmations has doubled in the year since filibuster reform went into effect. In the year since the change, the Senate has confirmed 79 judges, compared with 43 in the 11 months leading up to the change. With the September confirmation of Jill Pryor to a seat on the 11th U.S. Circuit Court of Appeals, the number of vacancies for appellate judges was reduced to seven, the lowest total since the end of Ronald Reagan’s first term as president.
The Senate is also poised to conclude its most productive two-year period of judicial confirmations since the Clinton administration. During 1993-94, the Senate confirmed 128 judges, while the current Senate has confirmed 122 since January 2013. With more confirmations likely during the current lame-duck session, breaking the modern record is possible.
Starting in January, Republicans will hold the majority of seats and will thereby be in a position to block any and all judicial nominations if they so choose.
Lena Zwarensteyn, deputy director of strategic engagement for the American Constitution Society, a progressive legal policy organization, said she doesn’t expect judicial confirmations to come to a screeching halt in 2015.
“All senators have a deep interest in ensuring that Americans can access the courts and the federal courts in their states and across the country are well-functioning,” she said. “This is not a time for senators to play games. We have seen Republicans obstruct the process and slow-walk nominations, but Republicans have an opportunity to demonstrate the cooperation they’ve promised and judicial nominations are a great place to start.”
Alternatively, Republicans could try to slow the pace of judicial confirmations and run out the clock on the remaining two years of Obama’s presidency, said the University of Richmond’s Tobias.
“As long as they think they are going to win the White House in 2016, they just have no incentive to move his nominees,” he said.