If you wanted to leave your job and your boss asked if you could stick around until your replacement was chosen, how long would you be willing to wait? A week? A month? Well, Daniel Hurley has been waiting two years.
That would not be any concern to most of us except that Hurley is a federal judge. And his plight reflects a growing national problem: vacancies on the federal bench at a time when caseloads are growing.
Nearly one in seven judgeships is unoccupied right now, and more than a third of those vacancies are considered judicial emergencies ― which means that criminal defendants, who are normally guaranteed a trial within 70 days, wait up to six months.
Things are even slower on the civil side. If you’re a company or an individual involved in a federal lawsuit, you can expect to be cooling your heels for two years before the trial begins. That’s two years of cost and uncertainty.
The American Bar Association regards the situation as “urgent.” It’s bad enough to have gotten the attention of Chief Justice John Roberts Jr., who in December publicly lamented the “persistent problem of judicial vacancies in critically overworked districts.”
What’s the holdup? As is often the case these days in Washington, it’s partisan politics. Last year, Democrats claim, Senate Republicans delayed confirmation votes in hopes of gaining control of the Senate. This year, they are allegedly putting them off in hopes of winning the presidency next year.
There is some basis for these charges. President Barack Obama has had a tough time getting his judicial nominees confirmed. Only 62 percent of his choices for district judge have made it ― compared to 74 percent of George W. Bush’s and 86 percent of Bill Clinton’s. These are the positions that should be the least problematic, since district judges are the ones who do the grunt work of running trials and processing cases, not the philosophical task of making law.
But Obama is not blameless. So far, he’s made appointments for fewer than half of the existing vacancies. Republicans say they can’t confirm nominees who haven’t been chosen.
Both sides have an obligation to do better. It’s no surprise that nominees to the Supreme Court, which has the ultimate say on the meaning of laws and the Constitution, would warrant lengthy scrutiny. But the bulk of what lower judges do is the simple, mundane but vital work of administering the courts.
Each party tends to obstruct when the other has the White House. But each suffers when power changes hands. It’s worse than a zero-sum game. It’s a game where everyone loses.
What is needed is a truce that would commit Republicans and Democrats to give up their blocking maneuvers except for genuinely controversial nominees. But when it comes to solutions, the American people, like many of those nominees, face a long wait.
