Senate keeps judicial picks waiting

With more than 90 seats vacant, federal courts left in lurch

In this Sept. 7, 2016 file photo, Senate Majority Leader Mitch McConnell of Ky. listens at right as Sen. John Barrasso, R-Wyo., left, speaks during a news conference on Capitol Hill in Washington.
In this Sept. 7, 2016 file photo, Senate Majority Leader Mitch McConnell of Ky. listens at right as Sen. John Barrasso, R-Wyo., left, speaks during a news conference on Capitol Hill in Washington.

WASHINGTON -- Federal judges in New Jersey have struggled with a workload approaching 700 cases each, nearly double what's manageable, because of judicial vacancies. In Texas, close to a dozen district judgeships remain open, more than in any other state.

Senate confirmation of President Barack Obama's nominees slowed to a halt this election year. The vacancy on the Supreme Court attracted the most attention as Republicans refused to even hold confirmation hearings for Merrick Garland, insisting that the choice to fill the vacancy created by the death of Justice Antonin Scalia in February rests with the next president.

But more than 90 vacancies in the federal judiciary are taking a toll on judges, the courts and Americans seeking recourse.

Obama has nominated replacements for more than half of those spots, including 44 nominees for district courts and seven for appeals courts.

Yet the Senate has confirmed only nine district and appeals court judges this year -- and only four since Scalia died.

The U.S. court system has declared 35 of the vacancies "judicial emergencies," a designation based on how many filings are in the district and how long the seat has been open.

Senate Democrats, along with some Republicans who want to fill vacancies in their home states, are pushing Senate Majority Leader Mitch McConnell to hold confirmation votes in the lame-duck session between the election and the end of the year.

But McConnell has said repeatedly that Obama has already gotten more judges confirmed over his eight years in office than President George W. Bush did.

The Senate has confirmed 329 of Obama's federal judicial nominees to lifetime appointments; 326 federal judges were confirmed under Bush.

Obama prevailed in part because Democrats controlled the Senate for six of his eight years.

Both Obama and Bush have had fewer confirmations than previous two-term presidents Bill Clinton and Ronald Reagan, who had 377 and 382 federal judges confirmed, respectively.

Democrats point out that they confirmed 68 judicial nominees after taking control of the Senate in the last two years of the Bush administration.

Republicans have confirmed 22 nominees since taking control of the Senate early last year.

"These vacancies make it harder for the federal courts to do their job," said Sen. Dick Durbin of Illinois, the No. 2 Senate Democrat. He noted that 30 of the nominations have been approved in committee and are waiting for floor action.

In Texas, there are 11 district court seats open, including some along the case-heavy border with Mexico.

Obama has nominated replacements for five of the open district seats in Texas, and the state's two Republican senators support them.

But none has received a vote.

Those pushing McConnell to move on the nominations are hoping that he will do so if Democratic candidate Hillary Clinton wins the presidency, since she is likely to re-nominate many of the same judges.

That's less likely if Republican candidate Donald Trump wins, though the nomination process is often bipartisan.

Sen. John McCain pledged Monday that Republicans will unite against any Supreme Court nominee that Hillary Clinton puts forward if she becomes president, forecasting obstruction even after the election.

"I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up," McCain said.

However, an aide later clarified that McCain, R-Ariz., will examine the record of anyone nominated for the high court and vote for or against that person based on his qualifications.

McCain's initial comments came in an interview with Philadelphia talk radio host Dom Giordano to promote the candidacy of Sen. Pat Toomey, R-Pa.

Home-state senators typically work with the president, regardless of party, to choose judges for federal district courts.

Tennessee's two Republican senators back Edward Stanton, a district court nominee for that state. Toomey, who is in a tough re-election fight, has been pushing for confirmation of several Pennsylvania judges.

One of the nominees waiting the longest for a vote is Julian Neals, nominated in February 2015 to fill the seat in New Jersey's 3rd District. The state has another district court vacancy as well, but Obama hasn't nominated a replacement.

Sen. Cory Booker, D-N.J., tried to move Neals' nomination, but McConnell blocked him, offering instead to move four other judges. Booker objected, since Neals and Tennessee nominee Stanton were next in line to be confirmed.

Information for this article was contributed by Josh Cornfield, Will Weissert and staff members of The Associated Press.

A Section on 10/18/2016

Upcoming Events