Senate Leaves 94 Judges Waiting for Confirmations (Audio)

or visit Commonwealth dot com to learn more. June Thanks Michael Senate Republicans refusal to even hold hearings for a justice to replace the late Antonin Scalia has been the subject of much debate, concern, and criticism, particularly in light of the favorable comments made about President Barack Obama's nominee, Judge Merrick Garland. That's overshadowed the fact that there are

now ninety four openings for federal judges. No judge has been confirmed since July six, although the Judiciary Committee has approved twenty moderate district court nominees on a voice vote without dissent. Professor Carl Tobias of the University of Richmond Law School wrote an op ed in The Los Angeles Times arguing the necessity to give these nominees a final

confirmation vote during the lame Duct session. Professor Tobias joins US now, along with Professor Charles Gardner j of Indiana University More School of Law, Carl, I can't remember the last time there was not a high number of federal judicial vacancies. Are these vacancies affecting the administration of justice

at this point? Just? They are. It just means more pressure is placed on the other judges uh to carry the substantial caseloads, and it means justice delayed as justice denied, so that litigants can't have their day in court, especially in civil cases. Charles, what is there any statement at all from the Senate or the Republicans as to why

they're not moving forward with these vacancies. Well, I mean there's a tradition here, uh for you know, for many years, uh, confirmation slowed down in the latter portion of an administration and and towards the very end. I think the the idea is, we can we can stall these guys out, and we can name uh the replacements with people whose ideological inclinations are closer to our own. In other words, we'll just wait for a Republican president to jump in

and and and take their place. It's it's it's it's pretty clear that that's what's going on. If you're asking for any sort of explanation. It's you know, you can it tends to it heads you down the road of of you know, claims of judicial activism and so forth on the part of of Obama nominees. But but the bottom line is that they're looking for to replace these judges with people who are Republican appointees. Carl hasn't Obama had a difficult time getting his federal judicial appointments through

even since the very beginning. Yes, and I think it's substantially due to Republicans fair to cooperate work closely with the administration, but it's been especially urgent and especially clear the last two years when the Republicans had the majority,

and they've managed to confirm so few judges. So that puts us where we are today, Charles, are all the pending nominations the kind of judges that I mean, you know, to the extent we can tell the kind of judges that the Republicans would have a problem with, or is it a mixed bag of nominees? Oh, you know, I have no reason to believe that they would have intrinsic problem with these folks. With Historically there there you know, there's been a lot of issues with Supreme Court appointments

and Circuit court appointments less a little bit less. Uh, District judges have have really fallen below the radar until until recently. Everything is becoming political in this polarized environment, and so you know, I think they want to name Republican appointees. But that is not to say that if they went ahead, rolled up their sleeves and looked at these folks, that they would be able to have identifiable problems with them. I don't think that's what's driving them

forward at this point, Carl. These are the these are the district court judges who are basically the trial judges in the federal system. So on the there on the front lines, does does there? Does their political bent mean as much as the political bent of let's say, in a Peltic court judge. No, you're right there the workhorses

of the federal judiciary. They conducted trials, but principally they manage the caseload and try to resolve cases at the initial stage, and they tend to be much less ideological. They're primarily appointed because of their competence rather than inability to manage the cases, rather than their theological views. Just to take a counter point done that Charles the you know, there was that district court judge in Texas who stopped the uh some of the immigration worked that the Obama

administration was doing. And and and there have been other examples of this around the country with district court judges, at least in the first instance, doing it all the you know, doing things that were more inclined to what the Republicans wanted than what the Democrats wanted. And of course it does get reviewed by the appellate courts. But isn't there an argument that from you know, from the Republican side, that look, these folks have a lot of power at

the district court level, They hear more cases. They actually have a lot of power over how things get decided in the first instance, and we need to make sure our people are in there. Sure, I mean, in defense of Carl's point, the data show that that the ideological influences are greatest at the Supreme Court, lesser in the

circuit courts, and lesser still at the trial court. That said, you know, there's no question that conservative and liberal appointees think differently about how to sentence a criminal defendant, whether to certify a class action and then as you just suggested, there may be special cases coming along, you know, having to do with affordable care, or having to do with with you know, immigration, or ideological charged issues where yeah,

let's let's concede that that there will be some influence here, and so that that helps to explain why the Republicans would have an interest. The point though, is that you're balancing that you balance the interest in the occasional ideological issue against the need to you know, to have the

system work. Uh. That that if you've got a capable, qualified judge, Uh, you know, there is some concern about saying, well, we're going to play politics to the extent of grinding the system to a halt in order to accommodate our our ideological preferences. And that's I think where we're at here, where where I'm concerned, even though I do understand that, yeah, I mean, there is a difference in the way they vote.

About a minute here, Carl, You're right that the election results likely will prompt more judges to retire or assume senior status. Why is that? Why should the election trigger that? Well, there's a tradition, uh, especially the Supreme Court that um justices resigned in the administration of a president of the same party as they were appointed. That's much less true

at the appellate and district level. But there may be some Republican appointees who are we're waiting to see if a Republican might win, and now that that's happened, Uh, they may go ahead and assume senior status or retire. But I want to follow up on a point that Charlie made, and that is, Uh, the coequal branch of government is not being given the judicial resources that it

needs by the Senate, and that's a real problem. Carl you urge in your up ed that the Senate during the lame duck session at least appoint the twenty that were given an upward down a unanimous vote in the Judiciary Committee. How likely is that to happen with this Senate. Well, it's maybe unlikely. I'm cautiously optimistic that some of those

twenty will be confirmed. And the reason for that is a majority of those twenty were recommended by Republican Home state senators to the President who nominated them, and they the Republican senators then strongly supported them in hearings and at the committee vote. And so that's the reason why I think it will go forward. If they none of them is confirmed, have to start all over and it's a huge waste of resources. Well let's talk about that, Charles.

Let's say, you know, some small number of them go through, but you still have upwards of seventy five vacancies on the federal bench when the President elect Trump gets sworn in on January. How long is it going to take the Trump administration to ramp up and make nominations to decrease the vacancy rate on the on the district court bench. It will take a while. I mean, you've got to

get the staffing up and running it. They're going to take a while to get the relevant staff to review the files and make recommendations, and then you've got once you've got them up and going, uh, they're going to have to be communicating with their home state senators getting new names, and then they'll have to vet them at that level. At that point, the a DA will have to vet them, the Senate will have to vet them. So you know, we are looking at a period of

of months at a minimum. I think that it's with with the unified Senate and White House we're looking at less delay, I would guess than we would ordinarily see and without the filibuster in in in place as a as a threat for the Democrats with lower court appointments, I'm guessing it will be a fairly efficient process. But even a fairly efficient process will take some time. It'll take it will take, uh will be well into the

new year before they'll start being able to nominate. A point people I would expect, carl With the appointment process being drawn out longer and longer, are a lot of talented mainstream nominees deciding not to go into a judge ship because frankly, they can make more in private law

firms and they don't have to put themselves through this. Yes, but let me say one thing to follow on what Charlie just said, and that is all of the processes are going to be delayed until a Supreme Court justice is nominated and confirmed, so that will push back even further the lower court nominations and confirmations as late as late.

But yes, June, you're exactly right. Um. It is the fact that many people, especially private practice may not even want to be considered for a judge ship because it takes so long, and then there in limbo, their clients wonder what's going on, the people whom they practice with want to know what's happening, and and so you discourage many people who would be fine judges from even considering that option. I want to thank you both for being

on Bloomberg Law today. That's Professor Carl Tobias of the University of Richmond Law School and Professor Charles Gardner j of Indiana University Morris School of Law.