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Leslie Proll

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The Judicial Confirmation Crisis: The Threat to Diversity

Posted: 03/16/11 11:28 AM ET

The alarmingly high number of vacancies in the federal judiciary threatens to undermine the administration of justice. Considerable attention has been devoted to the causes and consequences of the Senate's failure to confirm judicial nominees. But remarkably little has been said about the impact of this crisis on the color of the federal bench.

For months now, vacancies on the federal courts have hovered around 100. Nearly one out of every eight federal judgeships is vacant. The toll on our judicial system is substantial. As sitting judges are overburdened with large caseloads, long delays in civil and even criminal cases have resulted. And often, justice delayed is justice denied.

There is another, equally troubling cost posed by the Senate's standstill on judges. Among the stalled nominations are highly qualified minority candidates whose confirmations would do much to promote diversity on the bench. Indeed, three of the four nominees facing the highest hurdles for Senate confirmation are racial minorities.

This is a travesty, in and of itself. Diversity on the federal bench is critically important. We should all know this intuitively. Having diverse judges promotes confidence in our justice system and can enrich the judicial decision-making process. An inclusive judiciary is also important to the integrity and legitimacy of our democracy.

Many federal courts around the country lack any diversity. In other jurisdictions, gains in diversity through previous administrations' appointments are now threatened by the retirements of long-serving minority judges. We need the Senate confirmation process to function properly so that diversity of the bench can advance, not retreat. Instead, minority candidates are falling victim to the confirmation stalemate, even when they have strong bipartisan support.

One case in point is James Graves, nominated by President Obama to the U.S. Court of Appeals for the Fifth Circuit, which presides over appeals from federal courts in Mississippi, Louisiana and Texas. The nomination was historic: Graves will be the first African American ever to serve on the Fifth Circuit from Mississippi, which has the highest percentage of African Americans of any state in the nation. He was enthusiastically supported by Mississippi's Republican Senators, Thad Cochran and Roger Wicker. Although this vacancy was designated a judicial emergency, the Graves nomination stalled in the Senate for months; he was finally confirmed last month.

There are other glaring examples of nominations of minorities that have languished in the Senate. Nominated to the U.S. Court of Appeals for the Ninth Circuit over one year ago, Goodwin Liu has still not received a vote. If confirmed, Liu would be the only Asian American judge on the 29-member Ninth Circuit, whose jurisdiction serves a population that is more than twelve percent Asian American. Ed Chen has waited even longer for a vote on his nomination to the Northern District of California, which includes San Francisco. If confirmed, Chen would become the first Asian American ever to serve on this court. Another example is Arvo Mikkanen, recently nominated to the District Court of Oklahoma. If confirmed, he would be the sole Native American judge on the federal bench and only the third Native American federal judge in the nation's history. Already, however, there are disturbing reports about Senate opposition that threatens this nomination.

President Obama should be commended on his record of diversity in federal judicial appointments. Over forty percent of his nominees are racial or ethnic minorities. Yet the diversity of the federal bench will be impacted only if these candidates are confirmed by the Senate.

This session, the Senate should dramatically speed up the pace on confirmations. By considering judicial nominations as part of regular order, the Senate can reduce the acute staffing shortages which now jeopardize the effective operation of our legal system. And just as importantly, a timely confirmation process would help ensure that the face of the federal judiciary reflects our nation's broad diversity.