Unfinished Business

Report: Current Judicial Vacancies at Five-Year Low

By Juliet Eisenstein, a Summer 2014 Leadership Conference Education Fund Intern

After an era of unprecedented obstruction in the U.S. Senate, the number of judicial vacancies is at a five-year low, according to Alliance for Justice’s (AFJ) latest “State of the Judiciary” report.

The report credits “bold action by Senate Democrats” for alleviating the frustrating process of judicial nominations that has been a mainstay throughout the Obama administration. Specifically, a Senate rules change this past November allowed the president’s judicial nominees to be confirmed with a simple majority, rather than the previous supermajority of 60 votes.

Following this modification, the president and the Senate have succeeded not only in protecting the democratic process and increasing the pace of confirmations, but also in ensuring the professional and personal diversity of the nominees. As the report says, “lawyers with experience working in the public interest have been nominated at a substantially higher rate than during President Obama’s first five years in office.” Thirteen of the 18 men and women nominated by Obama so far this year have past experience not only as public defenders and plaintiff attorneys, but also as tenured academics. Moreover, Obama has “appointed the highest percentage of women and people of color in history,” as well as eight openly gay federal judges, compared to only one confirmed before his administration.

Still, the battle continues. While progress this year is noteworthy, a greater commitment to the nominations process – one that ensures a diverse and well-resourced federal judiciary – is needed before this issue will disappear. As the report notes, “During President Obama’s time in office, current vacancies have risen by 13 percent… [and] the number of seats considered to be ‘judicial emergencies’ has risen by 25 percent.” The report goes on to express that many of these vacancies are driven by partisanship, as “states with at least one Republican senator account for 87 percent of all current vacancies without nominees, and states with two Republican senators account for 55 percent of all current vacancies without nominees.” Nevertheless, vacancies in federal courts have dropped from 10 percent of all federal judgeships to 7.2 percent in just the past month.

“Obstruction and gridlock cannot be the ‘new norm’ for judicial nominees,” the report says, and with the progress made in recent months there is still hope that it won’t be.