Today’s Washington Post carries a front-page, above-the-fold article headlined (in the print edition) “Vacancies on federal bench hit crisis point.” According to the article’s lead paragraph, judicial vacancies “have nearly doubled since President Obama took office,” with the effect of “increasing workloads dramatically and delaying trials in some of the nation’s federal courts.” The article then briefly discusses three federal districts where the “crisis” is “most acute”: the District of Arizona, the Central District of Illinois, and the territorial court for the Northern Mariana Islands.
For purposes of this post, I will readily accept that there is indeed a genuine crisis “in some of the nation’s federal courts.” The question then becomes how best to go about addressing the crisis.
What this would mean, I submit, is that a White House serious about a crisis would identify those district courts facing a crisis situation and would make it the top priority to nominate qualified and uncontroversial candidates to those positions. The Senate Judiciary Committee, in turn, would give top priority to confirming those nominees.
An alternative approach, seemingly consistent with how the Obama administration implemented Rahm Emanuel’s declaration that “You never want a serious crisis to go to waste,” would fail to clarify what the crisis is and would seek to exploit talk of crisis for ideological advantage. This approach wouldn’t focus attention on the courts in crisis, but would instead use the language of crisis to provide cover for pushing confirmation of controversial appellate nominees (like Goodwin Liu) and filling vacancies on underworked courts (like the D.C. Circuit).