The federal courts play a vital role in our democracy, ensuring constitutional rights and principles are protected and providing justice to citizens who have been wronged by discrimination, corporate malfeasance, criminal activities and other transgressions of the rule of law.
Congress also cannot easily take action to help uphold constitutional values for individuals and communities that have been wronged by the government or business entities. For example, it was years before Congress and the administration could respond to the Supreme Court's 2007 decision in Ledbetter v. Goodyear ruling, which turned away an employment discrimination lawsuit brought by Lilly Ledbetter who was paid far less than her male co-workers for years. Recently a federal judge who owns stock in numerous companies involved in offshore oil drilling rejected the Obama administration's proposed six-month moratorium on deepwater drilling, maintaining the ban is too broad. And the DISCLOSE Act, aimed at providing transparency in elections following the high court's decision in Citizens United v. FEC, which held that corporations can funnel their profits into electioneering, has stalled in Congress. All of these actions show that Congress is not alone in ensuring justice. A fully functioning judiciary is also required.
But unfortunately the federal judicial system is not functioning properly or efficiently due to a growing number of vacancies on the federal bench. Those vacancies are causing the federal courts to be overburdened, delaying justice. The federal bench encompasses 867 seats; currently almost 100 are vacant.
A major factor for rising vacancies on the federal bench centers on the pace with which the Senate is confirming judicial nominations. That pace has gotten increasingly bogged because of divisiveness within the Senate. Perhaps not surprisingly the situation is exacerbated by senators - some of whom are motivated by animus toward the administration - actively working to delay the judicial nominations process.
Delaware Senator Ted Kaufman rightly condemned some of his colleagues' actions last week saying, "This is delay for delay's sake." The senator went on to note, "Of the 27 district court nominees confirmed during this Congress, only one has received a nay vote so far, even she was confirmed by a vote of 96 - 1. Not a single Republican objected to 26 out of 27 nominees, yet some Republicans forced them to wait for weeks or months for an up-or-down vote."
Sen. Jeff Sessions (R-Ala.) simply replied that things "do not always go as smoothly as you would like."
But the American people deserve better. They need a judicial system that is functioning properly, which means a federal bench with judges, not vacant seats. As President Obama pointed out in recent comments at the White House, "If we want our judicial system to work - if we want to deliver justice in our courts - then we need judges on our benches."
To help Americans appreciate, and stay on top of the developing crisis over the courts, my organization, the American Constitution Society for Law and Policy (ACS), has launched a Web-based project - JudicialNominations.org - which brings together a wealth of information and tools for understanding and following the nominations process. An interactive map allows users to select individual districts or circuit courts and identify the number of vacancies in that area, how long those vacancies have existed, whether anyone has been nominated and how long judicial nominations have been languishing. Much more information is available on the Web site, including congressional statements, videos, upcoming hearings and the latest nomination news.
The vacancies on the federal bench will continue to grow, considering the glacial pace at which the Senate is moving on the president's judicial selections, resulting in a judicial system that is already overburdened coming to a grinding halt. Sen. Mark Udall of Colorado, joining Kaufman and seven other senators last week in trying to move the nominations process along, noted that "Of the nearly 100 current judicial vacancies, 42 are considered judicial emergencies, almost half."
This is an unacceptable situation. The nation's courtrooms must not be left hostage to petty partisan bickering. That's why ACS is encouraging all who are concerned about an effective, efficient judicial system to follow the situation closely at JudicialNominations.org, and to become engaged in saving our courts from pitched, unnecessary and harmful political fracases.