Our justice system only works when it has actual judges available to mete out justice. The Supreme Court has been operating down one judge ever since Antonin Scalia died in February 2016. And from what the controlling senators have had to say, it appears that the judicial vacancy on the Supreme Court will not be filled until at least after the presidential election in November. This means that the Court will continue to work with only eight Justices instead of nine, stuck in frequent ties due to the ideological split among the remaining justices. What many people may not realize is that it’s not just our Supreme Court that is struggling due to being down a judge. There is an epidemic of judicial vacancies in our federal courts, slowing justice to a near halt in many regions of the country. Judgeships have become a pawn in the game of politics, and that is obstructing courts everywhere.
After the Supreme Court, the federal courts with the highest authority are the United States Courts of Appeals. Currently, there are judicial vacancies in 9 out of 13 Courts of Appeals. Under the Courts of Appeals are the federal district courts, and right now there is at least one judicial vacancy in 51 separate federal district courts. In fact, of the 673 federal court judgeships around the country, a full 10% of them are unfilled, waiting for the appointment of a new judge. In some parts of the country, the number of judicial vacancies is so high that it’s hard to understand how any justice is getting served at all.
Wherever you may fall on the political spectrum, you can’t understand the crisis of judicial vacancies without recognizing it as a political crisis. It’s a war between conflicting parties with our judiciary system as the casualty. The appointment of federal judges relies on cooperation between the President, who nominates someone for judgeship, and the Senate, which is supposed to “advise and consent.” When the system is working, the Senate follows a specific procedure: the Senate Judiciary Committee evaluates the nominee and then it votes on whether to present him or her to the full Senate for consideration and a vote. However, there are procedural moves that can block a vote on the nominee, both at the Judiciary Committee stage and once the nominee advances to a Senate floor vote.
Since our country’s politics are so polarized and angry, it has become a political strategy for Senate Republicans to routinely block the Democratic President’s judicial nominations without allowing for a full Senate vote. This is what the Senate has done with the President’s Supreme Court nominee Merrick Garland. Senators have refused to even meet with him, much less begin the Judiciary Committee’s process of holding a hearing on whether to present Judge Garland to the Senate for consideration. Essentially, our country’s political fight between Republicans and Democrats is playing out in a battle where judgeships are being held hostage.
Since 2014, when Republicans took over the Senate, judicial vacancies have increased 75%. Regardless of which party you’d like to see control the White House and Senate, it is an unconscionably dangerous game for Senators to play out that political conflict by destroying our judicial branch. But that is the political strategy that seems to have become the norm.
The true victims of this political game, of course, are the real people of all political persuasions who suffer because their trials are delayed by overworked and overtaxed courts. Even before the judicial vacancy problem became a full-on crisis in 2014, judicial vacancies had lengthened the average time it took in federal courts to get civil lawsuits to trial by 63% and for criminal cases by 16%. Given the number of vacancies since 2014, we know that these delays have been dramatically worsening ever since. Our country’s three-branch, balanced system of government will not work if one branch continues to drain another. We must urge the Senate to fill judicial vacancies.