The Judicial Vacancies “Crisis”

by Ed Whelan

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.

The sensible approach, I would submit, would first determine what the crisis consists of and where it exists. I would propose two points. First, the capacity of the judicial system to conduct relatively expeditious trials in criminal cases is far more important than its capacity to conduct trials in civil cases. Second, the best way to increase the capacity of the judicial system is to increase the number of district judges (by filling existing vacancies). By contrast, there is lots of room for appellate judges to operate more efficiently, and the marginal benefit of appointing new appellate judges is very small. (There also may be sensible ways to reduce the number of cases that clog the judicial system.)

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).

It sure seems to me that the White House and Senate Democrats are taking this second approach.