As Chief Justice John Roberts observed last year [pdf], judicial nominations have become something of a game for the political branches of the Federal government. Slow-walking judicial nominations – or even bringing the processing of new nominees to a complete halt – is either the last bastion of freedom or an assault on the Constitution. Both parties are comfortable making either argument, depending on which holds the political balance of power at any given moment. The voters don’t care, and nobody’s hurt.

Except somebody is hurt. Don’t believe me? There are currently 874 authorized Federal judgeships [pdf]. Eighty-two are currently vacant.  Sixteen more judgeships will become vacant within the next nine months.   That vacancy rate has been steady for many months, and with the general election campaign in full swing, prospects seem dim for making any significant progress in 2012.

Now look around your firm or legal department. Imagine one out of every ten senior attorney positions was vacant. Think that might slow down the work?

Judicial vacancies reduce public confidence in the judicial system. Faced with the prospect of putting their lives on hold for a year or more while they wait for committee votes and an up-or-down vote in the Senate, highly qualified attorneys are opting not to seek judicial appointments. Since criminal cases take precedence on the docket, civil litigants are waiting longer than ever for trial. Meritorious claims wait longer for compensation. Defendants facing meritless claims wait longer to remove the cloud that an unresolved lawsuit puts on a business. Since trial is further off, discovery stretches on and on, increasing the costs of litigation. As ABA President William T. Robinson III wrote, “Businesses face uncertainty and costly holdups, preventing them from investing and creating jobs.”

To be clear, I’m not advocating the confirmation of any particular nominee, or even the President’s nominees in general, as opposed to one or more nominees which the Senate might prefer. Rather, my point is the same one argued by ABA President Robinson, The New York Times,  and other newspapers around the country, see here, and here , and here, and here: the White House and the Senate should take action to fill the vacant judgeships with qualified candidates on an emergency basis.

Because an emergency is exactly what many districts around the country are facing. The Administrative Office of the United States Courts defines a district court as a “judicial emergency” when (1) the court has two or more judgeships and only one active judge; (2) the court’s “weighted filings” are more than 600 per judgeship; or (3) “weighted filings” are between 430 and 600, and the vacancy is more than 18 months old. A vacancy on a court of appeals is an “emergency” if: (1) the court’s “adjusted filings” per three-judge panel exceed 700; or (2) “adjusted filings” are between 500 and 700 per panel, and the vacancy is more than 18 months old. There are currently thirty-two judicial emergencies in the district courts and seven in the Circuits.  According to the Center for American Progress, more than 160 million Americans live in a jurisdiction declared a judicial emergency.

The four longest-standing judicial emergencies in the district courts are:

  • The Eastern District of North Carolina: This court currently carries 630 weighted filings per judgeship. Between 2010 and 2011, new filings increased 18.8%, and pending filings were up 10%. Judge Malcolm J. Howard took Senior status on December 31, 2005. There is no nominee from the White House.
  • The District of Maryland: This court carries 495 weighted filings per judgeship. Between 2010 and 2011, pending filings were down 1.8%. Judge Peter J. Messitte took Senior status on September 1, 2008. The President nominated Judge George Levi Russell III, an Associate Judge on the Circuit Court of Maryland for Baltimore City, to succeed Judge Messitte on November 10, 2011. Judge Russell is awaiting a confirmation vote by the full Senate.
  • The Western District of Texas: One of five pending judicial emergencies in the Texas District Courts, this court carries 751 weighted filings per judgeship.  Between 2010 and 2011, pending filings increased 5.7%. Judge W. Royal Furgeson Jr. took Senior status on November 30, 2008. There is no nominee from the White House.
  • The Western District of Wisconsin: This court carries 600 weighted filings per judgeship. Between 2010 and 2011, pending filings were up 45.7%. Judge John C. Shabaz took Senior status on January 20, 2009. There is no nominee from the White House.