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Lingering vacancies burden justice system; nominations lag, cases grow

- The Washington Times - Monday, March 11, 2013

A backlog of judicial vacancies at federal courts is straining the nation's justice system -- delaying trials, increasing workloads for judges and posing a disincentive for talented lawyers from pursuing careers on the bench, legal analysts say.

With split government in Washington, the problem isn't going anywhere soon.

"It's just a tragedy. Once you affect conditions like that negatively, it's not an easy fix to go back," said Susan Low Bloch, a Georgetown University Law Center professor. "There is no excuse to do this to [a judicial] institution that is really an unusually good institution."

The Senate on Monday voted without dissent to confirm two White House judicial nominees -- Richard Gary Taranto for the U.S. Court of Appeals for the Federal Circuit, and Andrew Patrick Gordon to the U.S. District Court for Nevada. The move reduced the tally of vacant federal judgeships nationwide to 85.

Both nominations have sat in limbo since the previous Congress. President Obama initially sent Mr. Taranto's name to the Senate for confirmation in 2011, and Mr. Gordon has waited since September.

The vacancy list -- which includes 67 district, 16 appeals and two international trade court slots -- is about 30 more than when Mr. Obama first took office in 2009 and more than double the number at the same point of George W. Bush's presidency, according to U.S. Courts statistics.

"Think of a military operating with 65 percent of its capacity," said Carl Tobias, a professor at the University of Richmond School of Law. "There is a mentality [in Congress] that the judiciary is another federal agency. Well, no, it's not. It's a third branch of government, and they need the respect that's due them."

Vacancies have led to 30 "judicial emergencies" declared on federal courts nationwide, meaning case filings -- using a complicated formula weighted on their importance -- have reached a peak amount.

Among the courts hit most seriously with the vacancy bug is the influential D.C. Circuit Court of Appeals, as four of its 11 seats are empty. The court is considered second only to the Supreme Court in level of importance because it handles challenges to most federal rule-making and oversees federal agencies based in Washington.

Mr. Obama twice has nominated Caitlin Halligan for the D.C. appeals court, but Senate Republicans have used filibusters to block her bid — most recently Wednesday — after accusing her of being a "liberal activist."

Democrats countered that she would be an impartial jurist who at the very least deserves an up-or-down vote based on her qualifications, which include serving as solicitor general for the state of New York and clerking for Supreme Court Justice Stephen G. Breyer.

Last year, Republicans were in no hurry to act on many of Mr. Obama's judicial picks, as they hoped a Republican would be in the White House this year and would appoint his own candidates.

Senate Minority Leader Mitch McConnell, Kentucky Republican, used this rationale to lead a filibuster last year to block the nomination of Robert E. Bacharach for the Denver-based 10th Circuit Court, even though he cleared the Judiciary Committee with strong bipartisan support.

Republicans ended their blockade after the elections, and Mr. Bacharach was confirmed for the post last month by a 93-0 vote.

The disruption that such delays cause on nominees also threatens to dilute the talent pool of potential judges.

"I wish the Senate would understand, whichever party is in power, that they're doing serious damage not just by imposing a burden on the existing judges, but by making it much more unattractive for people to want to become federal court judges," Ms. Bloch said.

"If people aren't attracted by the job and the prestige, they're not going to take it because it's a huge pay cut" compared with the sorts of private-sector jobs that federal judges can get.

Senate Republicans point out that Democrats also blocked judicial nominees during the George W. Bush administration, particularly pointing to Miguel Estrada, whose district court nomination was blocked several times by Democrats on ideological grounds.

Republicans also say the Obama administration has dragged its feet on sending nominees to the Senate and accuse the president of playing politics by choosing highly partisan candidates.

Although the number of vacancies has declined slightly in the past couple of years -- as empty seats on federal benches tallied 101 in March and 105 two years ago — the problem has existed for decades.

President Reagan faced 38 judicial vacancies in his first full month in office in 1981, but four years later the number shot up to 106. President Clinton was burdened with the task of filling 109 judgeships upon his inauguration in 1993, and faced 80 empty seats during his last month in office eight years later.

President George W. Bush had among the most favorable vacancy records among recent presidents during his last years in office, beginning his second term in office in 2005 with about 40 vacancies and ending his presidency with almost 60. But he also faced a hefty 92 vacancies during his first full month as president in 2001.

"Democrats and Republicans need to work together more cooperatively to fill the vacancies," Mr. Tobias said. "Everybody thinks it's unilateral disarmament if they give up anything. That really has to stop."

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