Bench Memos

Brookings Report on Judicial Emergencies

Brookings scholars Russell Wheeler and Sarah Binder have just published an interesting report titled, “Do Judicial Emergencies Matter? Nomination and Confirmation Delay during the 111th Congress.” Their primary conclusion: “we find only limited evidence that the White House and the Senate pay special attention to emergency vacancies as compared to non-emergency judgeships.”

Some additional highlights and observations:

1. “Judicial emergencies have increased since President Obama took office,” but the increase has been almost entirely in district-court vacancies. When Obama became president, there were eight judicial emergencies among the 13 appellate vacancies. Now, there are nine among the 17. By contrast, the number of judicial emergencies among district-court vacancies has risen from 10 to 40.

These statistics bolster my position that pushing to confirm appellate nominees would not be an intelligent response to the asserted “crisis” of judicial vacancies.

2. How meaningful is the United States Judicial Conference’s designation of a judicial emergency? As Wheeler and Binder explain, “All emergencies are not created equal.” Among other things, the calculation for district-court emergencies “does not account for the work performed by senior and visiting judges”—work that may vary dramatically in quantity among districts.

Wheeler and Binder also note that the workload measure for appellate courts is “crude” and may not capture significant differences in actual workload. (They also briefly assert that there is a “plausible case” that the rise in filings per appellate judgeship since 1990 means that any appellate vacancy is a “de facto emergency,” but the remarkable decline in appellate workload in recent years would seem to refute that case.)

It thus may well be sensible for the White House and the Senate not to pay “special attention” to the mere fact that a vacancy has been declared to be a judicial emergency.

3. Wheeler and Binder also explore other factors that might affect the nomination and confirmation rate for vacancies, including “the partisan makeup of the vacancy’s Senate delegation and the existence of a candidate-vetting committee.”


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