Pennsylvania's federal-court vacancies are undermining justice

Posted: July 18, 2012

With Judge Michael Baylson of Pennsylvania's Eastern District assuming semi-retired status this month, 77 of the federal judiciary's 856 appellate and district judgeships are vacant, including six of 22 in the Eastern District. These vacancies — affecting 9 percent of judgeships nationwide and 27 percent in the district that includes Philadelphia — undermine efforts to deliver justice. President Obama and the Senate should act promptly to fill them.

Of 179 appellate court judgeships nationwide, 13 are open. This is particularly important because the 12 regional circuit courts are the forums of last resort for 99 percent of federal appeals. Especially problematic are the District of Columbia Circuit, with three of its 11 judgeships vacant, and the 10th Circuit, with openings in two of 12.

In an effort to speed confirmations for the appellate courts, President Obama has solicited advice from Democratic and Republican legislators before making official nominations. He has nominated 41 excellent candidates for the circuit courts, and the Senate has confirmed 30. However, he has yet to make nominations for six vacancies, and the Senate has yet to consider seven of his nominees.

The 677 district judgeships, 63 of which are vacant, are also important. District judges preside over federal trials and are upheld by appellate courts in four-fifths of cases.

The president usually defers to home-state lawmakers on these nominations, and Pennsylvania Sens. Bob Casey and Patrick Toomey have worked together to fill District Court vacancies in the commonwealth. Earlier this year, Casey said it was "imperative" that the state's remaining vacancies be filled quickly, and Toomey promised to work with him, saying, "We need people in these seats soon. I certainly hope we don't have to wait until after the election." Last month, Toomey said he and Casey were continuing "to work in a truly bipartisan fashion to fill the remaining federal district vacancies in Pennsylvania."

Nevertheless, although it's difficult to tell exactly where candidates might be in the process, it seems the senators have not suggested nominees to the White House quickly enough. Operating without more than a quarter of the judicial complement, as the Eastern District is, imposes unnecessary stress on the court's other jurists and frustrates prompt, inexpensive, and fair case resolution. The senators should rapidly make recommendations for all six openings.

Obama, has nominated 153 highly competent nominees nationwide, but he has yet to nominate any for the six Eastern District vacancies. He must quickly nominate qualified candidates for those and the other 30 openings that lack nominees, and he must swiftly evaluate the Pennsylvania senators' suggestions.

The Senate, which has confirmed 122 judges, must promptly consider the 27 nominees still awaiting action, as well as any other nominees Obama recommends, including any Eastern District prospects, soon after their nomination.

With vacancies in almost a tenth of the nation's federal lower-court judgeships, and in more than a quarter of those in the Eastern District of Pennsylvania, the delivery of justice is seriously hampered. President Obama and the Senate must move quickly to address this.

Carl Tobias is a professor of law at the University of Richmond.

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