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Why the Senate Must Start Confirming Federal Judges, and Fast

Nov. 16, 2022, 9:00 AM

A federal judge in Texas on Nov. 10 enjoined President Joe Biden’s plan to cancel billions of dollars in student debt. The decision is a striking reminder of the importance and power of the federal judiciary, if any was needed.

But the federal judiciary is also understaffed. It currently has 89 vacancies, with another 30 on the way due to previously announced retirements. Confirming federal judges is thus among the most influential actions the Senate can take during the lame-duck session. Senators should hold a floor vote on at least 30 judicial nominees before the new Congress begins on Jan. 3.

Although Democrats have retained control of the Senate, that does not diminish the urgent need to confirm new judges. Maximizing the number of confirmations during the lame-duck session will reduce the work remaining for the next Congress. It will also allow the newly appointed judges to begin their important work.

Federal judges play a critical role in our constitutional system, and impact nearly every legal and policy issue. They protect the rights of criminal defendants, ensure due process for immigrants facing deportation, redress discrimination based on race, gender, or sexuality, and enforce intellectual property rights. And that is only a fraction of their many duties.

The US Supreme Court receives most of the public’s attention, but every single federal judge makes daily decisions that profoundly affect the individuals and communities within their jurisdictions.

Firewall Against Oppression

Perhaps most importantly, the federal judiciary is a bulwark of our democracy.

In the recent midterm elections, a federal judge in Arizona prohibited acts of voter intimidation. Judges elsewhere made decisions that affected whether and how citizens could vote by mail. And federal judges in Washington, D.C. are processing hundreds of criminal and civil cases arising from the Jan. 6 insurrection that violently sought to prevent certification of the 2020 presidential election.

Given federal judges’ importance, the large number of pending vacancies demands urgent action. The 89 current vacancies represent 10% of all federal judgeships. No organization can achieve optimal performance when understaffed, and the judiciary is no exception.

Backlog Bad for Justice

Simple math dictates that, when caseloads grow, the amount of time judges can devote to each case falls. Academic scholarship suggests that increasing caseloads affects not only the process litigants receive, but also case outcomes. Simply put, a large number of vacancies will likely cause injustices that can be avoided.

The problem is most acute in district courts, which have 76 of the 89 current vacancies (and 20 future ones). The Judicial Conference has identified 28 vacancies as “judicial emergencies” based on their duration and the number of filings per judge in the relevant court. Almost all such emergencies are in federal district courts. Those courts received over 380,000 new cases between July 2021 and June 2022.

The number of pending district court vacancies resulted in approximately 70 additional cases per active judge during that period. In the same 12-month period, circuit courts of appeals received 42,000 new filings. That means that, as a practical matter, district court judges have the last word in the vast majority of cases they decide.

Several Judges Just Need a Vote

The Senate has an opportunity to fill many pending vacancies during the lame-duck session. Twenty nominees are currently awaiting floor votes. Another four will be ready after receiving a discharge petition from the Senate Judiciary Committee. Eighteen more are waiting to be reported out of the Judiciary Committee.

Confirming all these nominees would fill 42 vacancies, eliminating more than 45% of the current shortfall. And the Judiciary Committee can simultaneously advance the process for 14 other pending nominees who have not yet received committee hearings.

The Senate should do all it can to seize this opportunity. It has done an admirable job of moving on judicial nominees during Biden’s first two years. Campaigning throughout the fall understandably slowed this progress.

The lull has increased the urgency of maximizing the number of judicial confirmations during the lame-duck session. Few other actions the Senate can take will have the same impact on our constitutional system.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Caleb Hayes-Deats is a member of the American Constitution Society and pro bono co-chair of its D.C. Lawyer Chapter.