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Federal judicial vacancies reaching crisis point
There are now 101 vacancies among the nation's 857 district and circuit judgeships, with 46 classified as judicial emergencies in which courts are struggling to keep up with the workload. At least 15 more vacancies are expected this year, according to the administrative office of the U.S. Courts. When Obama took office in 2009, 54 judgeships were open.
Most of the departing jurists have taken what is known as senior status - semi-retirement in which they receive full pay but can take a reduced workload and are not considered active members of the court. But court officials say the increased work, heavier caseloads and lack of pay increases are prompting more judges to leave the bench entirely.
The effect is most visible in civil cases, with delays of up to three years in resolving discrimination claims, corporate disputes and other lawsuits.
"Ultimately, I think people will lose faith in the rule of law,'' said Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit in California. "We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.''
Kozinski, who oversees the federal court in the Commonwealth of the Northern Mariana Islands, a U.S. territory, said the government has spent at least $250,000 to fly visiting judges to the island of Saipan, where the sole judge retired last year.
In Arizona, the number of criminal cases has increased 65 percent since 2008, while three of the 13 federal judgeships are vacant. Former chief judge John M. Roll was working on the judicial emergency declaration when he was killed during last month's shootings in Tucson.
Beyond the practical need for judges, the political stakes are high. The vast majority of federal cases are dispensed through the district and circuit courts of appeal, with the Supreme Court hearing fewer than 100 cases each year.
And control of the influential appellate courts tends to shift with the party in power: By the time Bush left office, his appointees had given Republican nominees a majority of about 56 percent on those bodies.
Party affiliation is not a perfect predictor of a judge's behavior, but studies have shown that Democratic and Republican nominees vote differently on some ideologically charged issues, such as abortion, gay rights and capital punishment.
When Obama took office, experts predicted he would flip the Republican appellate court majority in his first term. But in 2009 and 2010, the administration nominated 103 district and circuit judges, compared with 129 during Bush's first two years and 140 in President Bill Clinton's first two years, said Russell Wheeler, a Brookings Institution scholar who studies federal courts.
White House counsel Bob Bauer attributed the slow start to the administration's large legislative agenda, two time-consuming Supreme Court vacancies and an increasingly complicated background review process for nominees.
"We have made progress,'' Bauer added, pointing out that the pace of nominees picked up significantly last year. But those nominees faced a tough road in the Senate, as Republicans repeatedly exercised their right to "hold over" nominees before sending them to the floor.