There has been a severe breakdown in the process for appointing federal judges. At the start of the Reagan years, it took, on average, a month for candidates for appellate and trial courts to go from nomination to confirmation. In the first Obama term, it has taken, on average, more than seven months.
Seventy-seven judgeships, 9 percent of the federal bench (not counting the Supreme Court), are vacant; 19 more seats are expected to open up soon. The lack of judges is more acute if one considers the growing caseload. The Judicial Conference, the courts' policymaking body, has recommended expanding the bench by 88 additional judgeships.
President Barack Obama must make fully staffing the federal courts an important part of his second-term agenda -- starting with the immediate Senate confirmation of the 18 nominees approved by the Senate Judiciary Committee.
A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to block confirmations.
The Democratic majority, led by Sen. Harry Reid, can speed up the process by limiting use of the filibuster. He can do so by pushing for a simple majority vote at the start of the January session to alter Senate rules so that every judicial and executive-branch nominee is assured an up-or-down vote within 90 days. Without that change, many judicial nominations will founder.
Even if that rule change is made, the process of identifying, vetting and approving judicial candidates will need greater attention. Senators, who by custom recommend to the president candidates for federal trial judgeships in their states, should put in place more effective steps for making timely recommendations (like setting up merit selection committees) and making a choice within a reasonable period, like within 60 days of an opening.
The White House and the Justice Department, meanwhile, need to commit more resources to keeping up with those recommendations, to verify and nominate candidates for confirmation within, say, 60 days of receiving names. And the administration must be similarly prompt in identifying and nominating appeals-court candidates.
In a critically important court like the U.S. Court of Appeals for the District of Columbia Circuit, three unfilled vacancies and a fourth expected this winter, out of 11 judgeships, hobble the court's ability to make expeditious rulings in significant cases about regulation of the environment, financial markets and other social and economic matters. Many statutes channel review of such cases to the federal courts in the District of Columbia for their expertise about administrative law and for geographic convenience. The circuit court is a stark example of the broken appointment process and the harm caused by the Senate's inability to do its job.
