Today, the Senate Democrats pulled the “nuclear option” on the filibuster rules, enacting the most significant change to the Senate Rules in some time: article here. Now the Presidential appointees to judicial positions will no longer languish because of the filibuster rules. The straw that broke the camel’s back involved the President’s last three attempted appointments to the D.C. Circuit, but other Circuits have been suffering hardship forever, for the lack of new federal judges:
The most current list of judicial vacancies is here. A total of 93 seats on the federal bench are currently vacant. Fifty-one nominees to fill those seats are pending. There are 874 Article III judgeships. So, nationwide the federal bench is functioning with about a ten-percent absence of active judges. The Ninth Circuit has 17 open judgeships. The Eleventh Circuit has a whopping 13 current vacancies, with only four pending nominations to fill those seats.
Notice not only the number of vacancies, but the lengths of time many of those vacancies have remained open. Judge Malcom J. Howard from the Eastern District of North Carolina took senior status at the end of 2005. Jennifer Prescod May-Parker was nominated to fill his seat in June of this year, but she has yet to be confirmed. Judge Royal Furgeson from the Western District of Texas took senior status in 2008. He retired this year, becoming the dean of the University of North Texas at Dallas College of Law, which is set to open this coming academic year. No one has been nominated to fill his seat. While most of the current vacancies have not stood open for quite so long, many of them have been open for two years or more. Moreover, many of the judges who have retired or taken senior status have no nominated successor in their wake. On the Fifth Circuit, for example, there are nine vacancies (with a tenth coming next month with Judge Carolyn Dineen King planning to assume senior status) and not a single pending nominee.
One of two possibilities is likely true. One possibility is that the federal courts as a whole actually do not require nearly so many active judges as the courts have seats on the bench. The judiciary has been functioning short-handed for some time now. Perhaps this belies the claim that we actually need so many federal judges.
More likely, though, is the possibility that the impact of a short-staffed federal bench is felt disproportionately across the country, and some places — perhaps many places — are badly hurting for want of active judges.