July 2, 2013
(Chip Somodevilla/Getty Images)
(Chip Somodevilla/Getty Images)

Must read: The Brennan Center’s Alicia Bannon has a report out today about the complete disaster that has struck federal trial courts ever since Barack Obama became president and Republicans began unprecedented obstruction on his lower-level judicial nominees. From the report summary:

• Breaking with historical patterns, district court vacancies have remained high throughout Barack Obama’s presidency. District courts typically see brief peaks in vacancies after a presidential election, followed by a sharp decline in subsequent years. Yet, during the Obama administration, after district court vacancies spiked in 2009 they never returned to their previous level and, in fact, have grown further. For the first time since 1992, the average number of district court vacancies has been greater than 60 for five straight years, from 2009-2013.
Together, high vacancy levels and heavy caseloads are leaving sitting judges with unprecedented workloads. Counting both full-time active judges and part-time senior judges, the number of pending cases per sitting judge reached an all-time high in 2009 and was higher in 2012 than at any point from 1992-2007.
• Vacancies are hurting districts with the greatest needs. Judicial emergencies, a measure by the Administrative Office of the United States Courts of vacancies in districts with the most acute need for judges, have been higher in 2010-2012 than at any other point since 2002 (the last year for which comparable data is available).

What happened here is simple: Republicans, in January 2009, extended the war over the judiciary down to the bottom level. Supreme Court judges and Circuit Court judges have been battlegrounds for some years, and rightly so: There’s plenty at stake in these lifetime appointments.

But district court judges are a different story. Yes, there can be a policy effect of having Democratic-appointed compared to Republican-appointed judges even at the trial court level, but it’s certainly a lot less important. And so, until 2009 filibusters were unheard of for district court judges, and senators of both parties usually cooperated with the president to identify judges. After all, both Democrats and Republicans have constituents who need federal cases adjudicated.

That’s all broken down now. Republicans have not been unified against all district judges, but they have made confirmation a much more difficult hurdle, with most Republicans requiring 60 votes for confirmation (even if there’s not actually a cloture vote in most cases. It’s true that Obama has failed to make filling the federal bench the priority it should be, but a fair part of that is that nominating judges is a much harder job when the out party is fighting for every square inch of ground.

Bannon points out one more important component that gets less attention. It’s not only about obstructing existing vacancies; but also about the total number of federal judges. As she details, from 1961 through 1990, Congress regularly added seats to keep up with the population, but that slowed during the Clinton presidency and ground to a complete halt after 2002.

The result is justice delayed … and delayed … and delayed.

And, really, for very little reason. Sure, there’s patronage involved, and sure, as I said, there are policy implications. But on the other hand, we’re talking here about a Democratic president elected along with a Democratic Senate; the system just won’t work if the minority party is able to successfully drag their feet on everything.

Republicans should really return to a time when district court vacancies are filled quickly and relatively easily. And if they refuse, Obama and the Democrats should force the issue.