When Harry Reid took to the Senate floor Thursday to set the stage for filibuster reform, he mostly focused on executive branch nominations. But any changes he makes will almost certainly have a big impact on judicial nominations as well. After all, there are a lot of vacancies in federal courts. More, in fact, than there were when Obama first took office. He inherited 55 vacancies and, as of the May publication of a Congressional Research Service report on the subject, had built that number up to 88.
Contrary to some Democratic protestations, however, this isn't all — or, arguably, even mostly — the fault of Senate Republican intransigence. For most vacancies, Obama hasn't even nominated a potential judge.
And his pace of appointments is actually slower than George W. Bush's.
But the Senate is definitely contributing to the delays. The time from nomination to confirmation has been growing longer for nominees to district courts, which handle the initial trials for federal cases. Interestingly, waits are actually lower for appeals court judges.
Same pattern goes for confirmation rates. Trial judges are getting confirmed less often than under Bush, and appeals court judges are getting confirmed more often.
So district courts are really where the problem — both in terms of Obama's slow appointments, and the Senate's slow confirmations — really lies. Thankfully, the Brennan Center's Alicia Bannon is out with a very informative report on the consequences of these delays on federal trial courts. She starts with an overview of the basic facts, including this bracing chart comparing Obama's first term to Bush's first term, vacancy-wise.
Not great, though nothing we didn't know before. But the report delves deeper and works out what this means for judges' workloads. The number of cases per judge has been growing steadily since 2006, hitting a peak in 2009.
The increasing vacancies made it impossible to keep up with a caseload that grew substantially between 2006 and 2009. There's been a slight decline in caseloads since then, but that's mostly because tens of thousands of asbestos-related cases in eastern Pennsylvania finished up around then, so non-Pennsylvania courts can't take much comfort there. Nor can they conclude that everything would be all right if only vacancies had been filled. As Bannon's data shows, cases per judge still would have gone up even if Obama had nominated, and the Senate had confirmed, a judge for every vacancy.
The only thing that would have prevented the huge rise in cases per judge is if Congress had, for the first time since a freeze took effect in 2003, created new judgeships. That's not so unusual; between 1961 and 2001, 395 new permanent district court judgeships were created, and 18 temporary judgeships were made permanent. That's more than 10 new judges per year, on average. The Judicial Conference of the United States has called for the addition of 85 new judgeships (the effect of that is represented by the green line above), but even that wouldn't keep pace with the normal rate of judgeship additions.
Bannon's most troubling chart, however, concerns vacancies that the administrative office of the U.S. Courts has dubbed "judicial emergencies." These are vacancies where the sitting judges on the court in question are seeing caseloads that are far too large, either because the sheer number of cases filed is too high or because the cases filed are particularly complex and time-intensive. Emergencies have gone way up since Obama took office; 25 vacancies are in that category in the 2013 average.