In times of crisis, Americans expect their leaders to persevere, roll up their sleeves and put in the work necessary to pull us through. Right now, America is experiencing a judicial vacancy crisis and it is up the Senate to stay in Washington to fix it.
The federal courts haven’t had this many vacancies – 136 – in over 20 years. Despite a very high number of judges already appointed and confirmed, vacancies have increased by 13 percent since President Trump took office.
This is not an abstract problem. Judicial vacancies lead to case backlogs, which delay our fellow citizens from getting their day in court. And when their cases finally do come up, they are heard by overworked judges.
As we all know, justice delayed is justice denied. An appeal in federal court can take two years or more. That’s two years in which citizens can be denied their liberty or their property simply because there aren’t enough judges to share the caseload.
Now, there is speculation that Congress will go into recess sooner than its original date of Dec. 14. Lawmakers could go home as early as Dec. 7. If they recess sooner than planned, up to seven pending circuit court and 40 district court nominees would not get confirmed by this Congress.
Senate Majority Leader Mitch McConnell, R-Ky., has indicated that filling judicial vacancies is his top priority. As far back as May he said that he’d keep the Senate in session through New Year’s Eve to confirm judges. The American people need him to follow through on his commitment.
The Senate needs to stay in session to do its part to replenish a depleted system that is also rampant with judicial activism. The 47 judges the Senate could confirm this session would fill more than a third of the existing vacancies. That’s a pretty good chunk.
Confirming that many more judges will only get harder as senators eyeing 2020 feel politically obliged to double down on the kind of obstructionism that has marred so much of the judicial confirmation process over the past two years.
No one senator should be able to obstruct the process, and there’s no reason all of these nominees should not receive bipartisan support in any case.
While McConnell is correct that judges aren’t the only issue facing Congress in the lame-duck session, that doesn’t negate senators’ responsibility to ensure that the judicial branch is able to function. It also doesn’t justify horse-trading away a functioning judiciary in favor of some other priority.
What’s more, the president’s nominees for judicial vacancies have exhibited a lifelong commitment to the Constitution and will interpret the law as written. Their restrained judicial philosophy makes these qualified nominees more than fit for their appointments.
It won’t be easy. Take the case of Paul Matey, a fair and experienced attorney whose nomination to the 3rd U.S. Circuit Court of Appeals was held up by senators more committed to political obstruction than filling important judicial vacancies that would serve their constituents.
Americans deserve a fully functioning judiciary and leaders with the courage to make that a reality. The current nominees are highly qualified, possessing the proper temperament for judges. They deserve an up-or-down vote.
Before the midterm elections, McConnell shepherded the confirmation of 15 nominees and hearings for 10 others while senators rushed home to campaign. We need that same type of commitment now. McConnell needs to keep the Senate in session for as long as it takes for him and his colleagues to do the work the American people elected them to do.