Originally published in The Morning Call February 27, 2012
Recent attacks on judges and the courts by various candidates for office have at least raised the visibility of the role of the judiciary in American society. Unfortunately, the picture is not a promising one. The reason for the pessimism, though, stems not from overreaching judges or out-of-control courts but instead from a government branch caught in the middle of a political tug-of-war threatening to stymie any action at all.
Judicial vacancies permeate court after court across the nation. According to the American Constitution Society, there are 86 vacancies on the federal bench, including 32 deemed "judicial emergencies," and this rate has hovered at alarming levels for more than two years now. In Pennsylvania, the picture is particularly grim, with six empty seats, including two judicial emergencies, and not a single nominee.
President Obama's recent recess appointments led Republicans in Congress to threaten to hold up any presidential appointments for any positions requiring Senate approval. This unprecedented obstruction isn't just some war of words; real Americans are feeling the impact.
While the Senate stalemate is the largest obstacle these days, the problem starts with individual senators themselves. Here in Pennsylvania, Sens. Bob Casey and Pat Toomey need to recognize the urgency and propose nominees in a more timely manner, fulfilling their constitutional obligation to provide "advice and consent" to the president on judicial appointments. For district court appointments in particular, senators submit names to President Obama, who assesses the candidates and nominates them if he deems them fit. So long as the senators do not submit names, the process cannot move forward — and the seats remain empty. Sens. Casey and Toomey have a good working relationship, and they have indicated that they are working on identifying appropriate judicial nominees. But it is long past time that they make this issue a higher priority.
- The U.S. District Court for the Eastern District of Pennsylvania has four vacancies, including one that's more than 21/2 years old with no nominee yet. The U.S. District Court for the Middle District of Pennsylvania has two emergency status vacancies — open since March 2009 and April 2010, respectively — and no signs of a nominee for either seat.
- In March 2007, a vacancy opened on the U.S. District Court for the Western District of Pennsylvania circuit when Judge Thomas Hardiman was elevated to the U.S. Court of Appeals for the Third Circuit. For 31/2 years there was no nominee for the seat as Presidents Bush and Obama let the vacancy languish until Obama finally nominated federal Magistrate Judge Cathy Bissoon late in 2010. The Senate ultimately confirmed Judge Bissoon — who has since been sworn in — by a vote of 82-3, clearly demonstrating that there was no controversy surrounding the nominee and that the vacancy could likely have been filled long before.
- A similar story emerges from the U.S. District Court for the Middle District of Pennsylvania. The seat, vacant as of January 2009 and yet no nominee for nearly two years, was deemed a judicial emergency. President Obama nominated Robert Mariani on Dec. 1, 2010, whom the American Bar Association rated "unanimously well qualified," though the Senate didn't confirm Judge Mariani (overwhelmingly, mind you) until October 2011.
As a former federal judge, I know the toll this persistently high vacancy rate takes on our courts. Federal judges have reported being forced to handle criminal caseloads more than double what they confronted just two years ago. This, in turn, is limiting the access people have to the judicial system, often resulting in exasperating delays for all parties involved.
In many states, senators' unprecedented obstruction on the chamber floor has perpetuated this crisis, preventing the confirmation of highly qualified nominees with bipartisan support. In Pennsylvania, to avert an even more serious crisis, Sens. Casey and Toomey must act with dispatch to propose nominees to fill these vacancies.
The judicial branch relies upon the executive and legislative branches to fill vacancies to help keep the federal courts performing optimally. Senate inaction is compromising the judiciary's constitutional responsibility to protect and preserve our liberties. "Justice delayed is justice denied" isn't just an old legal maxim; it should be a rallying call to action.
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