Last year, as the first half of this congressional session came to a close, D.C. courts issued a dire warning as they faced an unprecedented number of judicial vacancies that was slowing the wheels of justice in every corner of the law.
The perpetual crisis of large numbers of judicial vacancies on the D.C. Superior Court and Court of Appeals has underscored how Congress, even though it oversees the District, does not always tend to the city’s needs, even when they are pressing.
Since it’s not a state, D.C. has almost no control over the nomination of judges who administer justice in the city in criminal and civil matters and in administrative cases. Instead, the city can make recommendations but must rely on the president to tap nominees and the U.S. Senate to confirm them — but with many other things on its to-do list, the chamber does not keep pace with vacancies, devoting little time or attention to them throughout the year until city officials once again sound the alarm.
“They give priority to federal judges, and never get around to the judges that we need in the District of Columbia, and that’s in Democratic and Republican congresses,” said Eleanor Holmes Norton (D), the District’s nonvoting House delegate. She added, “It’s certainly a strong argument for treating the District as a state.”
The D.C. Superior Court has 14 vacancies — a fourth of its bench, with more vacancies expected by February — and the Court of Appeals is missing two of nine judges.
“How many times and ways can we say we need help and action before federal lawmakers feel compelled to help and act?” D.C. Courts spokesman Douglas Buchanan said in a statement. “This isn’t politics, this is life and justice.”
This month, the D.C. Council, led by Charles Allen (D-Ward 6) directly petitioned the Senate and President Biden for assistance. In a recent letter to White House counsel, the entire 13-member council asked that the president swiftly submit eight new nominees to the Senate for consideration by the end of this Congress. Another eight nominees are pending on the Senate calendar and could be called to the floor for a vote if Senate Majority Leader Charles E. Schumer (D-N.Y.) chose to do that, which the council requested in another letter it sent last week.
“Given the significant impact the current number of judicial vacancies has had on our courts, swiftly confirming these nominees is crucial to the administration of justice in the District,” the council wrote.
Allen said he has spoken separately with Schumer and representatives from the White House to reiterate the level of urgency for District residents, whose day-to-day dealings with the courts are wide-ranging. Delays caused by the vacancies are far-reaching in the city’s judicial system, he said.
“Probate court is jammed up; family court is jammed up — you’re talking about child custody and the legal structures of families — this is what the courts deal with every day, and they’re shorthanded,” Allen added.
A spokesman for Schumer, who is in charge of putting nominees or legislation on the Senate floor, did not offer comment; Norton said she had no indication that the Senate planned to work on D.C. judicial nominees in the lame-duck period.
White House spokespeople did not respond to a request for comment.
The stretched-thin D.C. courts say they are bracing for an even greater workload after the D.C. Council this month passed a once-in-a-century overhaul of the District’s criminal code.
Starting in 2025, the code will restore the right to a jury trial for almost all of the District’s misdemeanor defendants, a right the city largely took away in the 1990s. It also vastly expands which incarcerated people are eligible to petition the court for a reduced sentence. Mayor Muriel E. Bowser (D), the U.S. attorney and the courts raised objections with restoring the right to misdemeanor trials, citing shared concerns about how it could cause further delays in the justice system.
Proponents of the change say the jury trial provision will phase in over time between 2025 and 2030, giving courts several years to adjust. Still, Buchanan estimated that the “exponential” increase in trials once it’s fully implemented — more than 200 additional per year, he said — coupled with hundreds more people in prison petitioning courts for reduced sentences would be unsustainable given the current vacancies. He added that the courts “see no indication that additional resources are forthcoming in the near future.”
“Without additional judges, this significant increase in our workload is untenable and will adversely impact the Courts’ ability to meet basic constitutional requirements of providing speedy trials in cases across the criminal division,” Buchanan said.
D.C. Council chairman Phil Mendelson (D) said in an interview that the number of vacancies is “nearly crippling” for the city; it’s his hope that the letter and recent criminal code debate will bring fresh attention to the issue.
“There’s an irony with D.C. statehood opponents on the Hill saying that the District can’t govern itself when Congress can’t even confirm these appointments,” Mendelson said. “Yet, they’re not willing to concede or transfer the authorities that enable us to run a government well.”
For now, the fate of the criminal code overhaul — the majority of which was acclaimed by criminal justice reform advocates and prosecutors alike — is not entirely clear. Bowser has previously said she could veto the bill, disagreeing not only with the expansion of misdemeanor trials but also reductions of maximum penalties for certain violent crimes, though the council could override her veto.
The overhaul is also expected to face resistance from congressional Republicans, who routinely criticize what they call out-of-control crime in the District. Rep. James Comer (R-Ky.), the top Republican on the House Oversight and Reform Committee, which has oversight of D.C., has said Republicans would “use every remedy available to the House to prevent this pro-criminal bill from becoming law.”
Norton, however, said that Democratic control of the Senate is D.C.’s “saving grace” and makes it unlikely that Republican attempts to block the D.C. legislation will succeed.
The Senate had confirmed seven D.C. judicial nominees earlier this year, but another eight are awaiting a vote. The nominations have gotten even more time-consuming, Norton said, because rather than just confirming them unanimously by voice vote and moving on, Republicans are known to lodge objections and open up debate for up to two hours per nominee.
Norton said that if this is a burden for the Senate and it doesn’t want to deal with it, she has a solution: Give the chamber a deadline.
She had previously introduced legislation limiting the congressional review period for D.C. judicial nominees to 30 days, which would allow nominees to be appointed after that time elapses — unless Congress lodges a joint resolution of disapproval.
That solution, Norton said, would offer a win-win: D.C. officials wouldn’t have to continually beg the president and leader of the Senate for attention to their local court, and the Senate wouldn’t have to expend its limited time and energy on local D.C. judges.
But while her bill advanced from a House committee, it never got a vote on the floor. And in a Republican-controlled House in the next Congress, the measure would be unlikely to move.