Judicial Vacancies: An Unspoken Crisis

by Mark Wilson

With all the problems we have to deal with — terrorism, the economy, and the mystifying success of Dancing with the Stars — it seems like there’s little room left for more worries. Thankfully, that’s not true: we can always worry some more.

Judicial vacancies are becoming a problem. All federal judges are appointed by the president “with the Advice and Consent of the Senate.” Once appointed to the bench, federal judges serve for life, or until retirement or impeachment. Most of us are familiar with the nine justices who sit on the U.S. Supreme Court. As the highest court in the land, and the most powerful judges in the country, the members of the Supreme Court are probably deserving of being the public face of the federal judiciary.

Beneath them, though, is a federal court system that deals with important issues. It consists of thirteen circuits that hear cases on appeal, and 94 district courts from which cases originate. (And add to this specialty courts like the Court of International Trade and the various bankruptcy courts and tax courts.) That’s a lot of judges. In fact, there are 874 federal judgeships, but 86 of those positions are outright vacant and 44 have nominees “pending” (meaning, a person has been nominated to the post, but has not yet been confirmed by the Senate).

Why does it matter that 15% of the judgeships in the federal court system have no one in them? Because it affects the quality of the judiciary. In the Ninth Circuit, for example — the nation’s single largest circuit (encompassing Washington, Oregon, California, Arizona, Idaho, Alaska, Hawaii, Nevada, Montana, Guam, and the Northern Mariana Islands) — there are 14 vacant positions. The longer the dockets get, but the fewer judges there are to hear the cases, the more likely it is that cases will not be heard or will be heard only after a lengthy delay.

It’s also hard on the existing judges. Because of the problems in the Ninth Circuit, judges taking “senior status” (meaning they should be semi-retired) are still working full time. 16 of the 19 senior judges in the Ninth Circuit actively deal with 33% of the Circuit’s caseload.

And that brings us to Goodwin Liu. Liu is a professor of law at Berkeley Law School (formerly Boalt Hall School of Law). At only 40 years old, Liu is a judicial superstar who could spend the next 40 years being an excellent judge, both on the Ninth Circuit and probably on the U.S. Supreme Court, given his pedigree. (Stanford, Yale Law School, Rhodes scholar, et cetera). In addition to attending all the “right” institutions, Liu happens to be extremely bright.

And that’s exactly why Republicans are afraid of him. You see, Liu is also very progressive. He is a board member of the American Constitution Society, a group founded in 2001 to combat the “originalist” thinking of The Federalist Society. Liu is buddies with Stanford law professor Pamela Karlan, who would be a federal judge if it weren’t for her unabashed and outspoken liberal opinions. Liu even made the capital mistake of putting his liberal opinions in a book, Keeping Faith with the Constitution, in which he — along with Karlan and Duke University School of Law professor Christopher H. Schroeder — talk about how the Constitution’s constant re-interpretation is really good for America.

He might as well be a Nazi.

You see, when a conservative judge is outspoken about his conservative opinions, that’s great. The more, the better. Let’s all take a trip in the DeLorean back to 1789, when times were simpler and people owned other people like so much cattle. But a liberal judge? A liberal judge had better turn the milquetoast dial to 11. Don’t you dare suggest that the Constitution is a living document, or you’ll be branded with the A-word, the modern judicial equivalent of “socialist” (with the same muddling of meaning that George Orwell criticized in “Politics and the English Language”). Liu even apologized for saying this:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse [and] where a black man may be sentenced to death by an all-white jury for killing a white man.

Liberal judicial nominees are actually required to apologize for saying things that are perfectly true. Meanwhile, John Roberts was lauded by conservatives for his blitheringly stupid analogy between judges and umpires. (Of course, in Roberts’ defense, he is not actually that stupid. He is actually very smart. He was merely pandering. You understand.)

Liu was originally nominated in 2010 — that’s right, a year ago — and after his nomination expired, he was re-nominated. Today, he was once again deprived of an up-or-down vote by Republicans who were terrified that a liberal voice might be in the federal court system for the next forty years.

Thanks to a filibuster by Republicans in the Senate, Liu did not even get his vote. The filibuster, as you’ve probably heard, is an ingenious way of requiring a 2/3 majority for business that should require only a simple majority. Modern filibusters are nothing like what Jimmy Stewart did in Mr. Smith Goes to Washington. Today, all a senator need do is file a motion for filibuster, and the business is considered filibustered. 2/3 of the senators are required to pass a motion for cloture, which ends debate and triggers a vote.

So how radical is Liu? Is he suggesting that we should re-interpret the Constitution so we can marry our pets? Does he want mandatory abortions? Well, he’s unradical enough that even Ken Starr (yes, that Ken Starr) has endorsed him as imminently qualified.

And so it looks like another vacancy goes unfilled as Republicans block qualified nominees, hoping to stall just long enough until they get their shot at the presidency, during which time they’ll hopefully be able to get some bright, young Robert Borks into the judiciary.