Now vacant: A confirmation crisis in our courts

By Eric H. Holder Jr.
Tuesday, September 28, 2010; A25

More than a year ago, President Obama nominated Jane Stranch, a respected Nashville labor lawyer, to a seat on the U.S. Court of Appeals for the 6th Circuit. That vacancy had been declared a "judicial emergency" because the Sixth Circuit does not have enough judges to promptly or effectively handle the court's caseload, leading to serious delays in the administration of justice to people in Tennessee and other parts of the 6th Circuit. Yet despite the fact that Judge Stranch enjoyed the support of both of her Republican home-state senators and bipartisan support in the Senate Judiciary Committee, she was forced to wait almost 300 days for an up-or-down vote by the full Senate. When she finally received that vote earlier this month, she was confirmed overwhelmingly.

Unfortunately, her story is all too typical. Nominee after nominee has languished in the Senate for many months, only to be confirmed by wide bipartisan margins when they finally do receive a vote. As Congress finishes its last week in session before the November elections, our judicial system desperately needs the Senate to act.

Today, 23 judicial nominees -- honest and qualified men and women eager to serve the cause of justice -- are enduring long delays while awaiting up-or-down votes, even though 16 of them received unanimous bipartisan approval in the Judiciary Committee. The confirmation process is so twisted in knots that we are losing ground -- there are more vacancies today than when President Obama took office. The men and women whose confirmations have been delayed have received high marks from the nonpartisan American Bar Association, have the support of their home-state senators (including Republicans), and have received little or no opposition in committee. These outstanding lawyers and jurists deserve better, as do litigants who bring cases to increasingly understaffed courts.

In the Eastern District of California, in Sacramento, there are 1,097 cases filed per judge annually. Six months ago, the president nominated California Judge Kimberly Mueller to help relieve that workload. Judge Mueller is a distinguished jurist with seven years' experience as a magistrate judge, a unanimous rating of well qualified from the American Bar Association and the unanimous backing of the Senate Judiciary Committee. Yet she has still not been confirmed.

For the 4th Circuit, the president nominated Albert Diaz, an experienced state court judge and former Marine and officer in the Navy's Judge Advocate General Corps, to a seat on the U.S. Court of Appeals that has been vacant for more than three years. He was approved unanimously by the Senate Judiciary Committee in January and is strongly backed by both of North Carolina's senators. Yet Judge Diaz has waited 242 days for a vote by the full Senate.

In the rotunda outside my Justice Department office, it is inscribed that "The United States wins its point whenever justice is done its citizens in the courts." As attorney general, I have the privilege of leading a strong department in which public servants seek justice every day. But the quotation that has greeted attorneys general for the past 70 years serves as a reminder that justice depends on effective courts. The federal judicial system that has been a rightful source of pride for the United States -- the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law -- is stressed to the breaking point.

Last year, 259,000 civil cases and 75,000 criminal cases were filed in the federal courts, enough to tax the abilities of the judiciary even when it is fully staffed. But today there are 103 judicial vacancies -- nearly one in eight seats on the bench. Men and women who need their day in court must stand in longer and longer lines.

The problem is about to get worse. Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades. If the historic pace of Senate confirmations continues, one third of the federal judiciary will be vacant by 2020. If we stay on the pace that the Senate has set in the past two years -- the slowest pace of confirmations in history -- fully half the federal judiciary will be vacant by 2020.

As Justice Anthony Kennedy recently noted, the "rule of law is imperiled" if these important judicial vacancies remain unfilled. In 2005, Senate Republican leader Mitch McConnell called on Congress to return to the way the Senate operated for over 200 years, and give nominees who have majority support in the Senate an up-or-down floor vote.

I agree. It's time to address the crisis in our courts. It's time to confirm these judges.

The writer is attorney general of the United States.

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