In his book The Pursuit of Justice, Bobby Kennedy said, “Justice delayed is democracy denied.” The U.S. Senate has held up presidential appointments to the federal bench in historic numbers–delaying justice from being served by creating judicial emergencies all over the country. A federal judge receives more than 400 new cases each year. It should be no surprise that with 79 vacancies on the federal bench, there is now over a two-year waiting period for civil matters to be heard. Chief Justice John Roberts acknowledges that “districts have been burdened with extraordinary caseloads.”
These critical positions remain open due to partisan efforts to obstruct the confirmation of judicial nominees. While vacancies declined by 65% and 34% during the first terms of Presidents Clinton and Bush, vacancies actually rose by 51% during President Obama’s. Appointments by President Obama have taken over a year to be confirmed by the Senate–averaging 387 days. The American judicial system was founded on the principle that everyone should be able to have their day in court, but today, it is only if they are willing to wait. According to the American Constitution Society, 34 of the 79 vacancies are considered “judicial emergencies.”
Republican senators tried, with success, to keep these vacancies open under President Obama for candidates from their own party, hoping that there would be a different outcome in the presidential election last month. The framers of our Constitution did not intend this and the judicial nomination process should not work this way. For district court appointments, senators propose candidates to the president. Then, if the president deems a candidate fit, the president submits the nomination to the Senate, and the nominee is forwarded to the Senate Judiciary Committee for a hearing. If a majority of Judiciary Committee members vote to support a nominee, the nominee is reported to the full Senate for a floor vote, where it takes a majority to confirm an appointment. Currently, there are 31 pending federal district and appellate court nominees. Sixteen of these nominees have made it through the Senate Judiciary Committee, but had been stalled on the Senate floor by Republican blocks.
However, as President Obama finishes his first term, and prepares to begin his second, there is hope for a break in the partisan fever. Now, faced with four more years under a Democratic President, Republican senators seem to be willing to compromise for the sake of the American people. Republican Senator John McCain, who has strongly voiced his opposition to Susan Rice, the U.S. Ambassador to the United Nations, said that if she is nominated to be the next secretary of state he will consider her testimony. On the judicial nominee front, Republican Senator Tom Coburn said that with Obama’s victory, the nominations of federal Magistrate Judge Robert E. Bacharach and attorney John E. Dowdell should quickly move through the Senate. Last week, four nominees have been confirmed by the Senate and four nominees have been approved by the Senate Judiciary Committee.
Ellen Meriwether, the head of the Philadelphia Bar Association’s Federal Courts Committee, agreed that “the winds of compromise seem to be blowing over Washington again.” She also added that “hopefully, they will blow this way.” Perhaps nominations will also pass through the Senate and help ease some of the federal court’s caseload. As our country’s leaders are beginning to realize, politics should take a backseat to the needs of the American people. Both parties need and deserve a federal court system that can keep up with the many cases being filed. Now is the time for the partisan fever to break in Washington. Unless the Senate acts, Bobby Kennedy’s words will remain true: justice delayed is democracy denied.