Federal Courts Are Critical Part of American Democracy
Every single issue Americans care about comes before our federal courts. Each day, federal judges make decisions about everything from the air we breathe and the water we drink, to our safety and wages at work, to our reproductive rights and who we can marry. And the federal courts are a vital part of our system of checks and balances, defending Americans’ rights from overzealous legislatures and executives.
To truly live up to their promise of equal justice under the law, our federal courts must be staffed with highly-qualified judges who will safeguard the rights of all Americans.
How We Choose Federal Judges
Vacancy: Vacancies in the federal courts occur when Congress creates a new judgeship or when sitting judges retire, die in office, are elevated to a higher court, or take “senior status,” a kind of semi-retirement which allows them to continue consider some cases while decreasing their workload.
Potential Nominees Identified: For district (trial) court vacancies, home-state senators typically recommend potential nominees to the President. For circuit (appellate) court vacancies, the White House typically identifies potential nominees on its own, then consults the home-state senators on the selection. In every case, the final decision belongs to the White House. (For the Supreme Court, the D.C. Circuit Court of Appeals and a few other special courts, there is no “home state,” and the White House chooses on its own.)
White House Sends Potential Names to the ABA: Before the nomination becomes public, the White House asks the American Bar Association to review its nominations and rate them according to three criteria: integrity, professional competence and judicial temperament.
Nomination: Once the White House has made its final decision, it publicly announces the nominee and sends his or her name to the Senate.
Blue Slip: Nominations in the Senate are referred to the Judiciary Committee, but before a hearing is held, the chairman of the committee traditionally asks the home state senators, regardless of party, for permission to hold a hearing on the nominee. Under the current Judiciary Committee chair, the nomination does not move forward to a hearing unless both home state senators give their permission to proceed, which can take months—or never happen.
Hearing: After the blue slip is returned, the Judiciary Committee chairman schedules a hearing. Senators can ask questions of the nominee in person or in writing after the hearing.
Committee Vote: Once the chair determines that an adequate amount of time has passed for questions to be answered and reviewed, a committee vote is scheduled. Any member of the committee can delay the vote until the next meeting of the committee without providing a reason, which the current minority party does as a matter of course. Because Democrats currently outnumber Republicans on the committee, even a party-line vote is enough to move the nomination to the full Senate.
Executive Calendar: After nominees are approved by the Judiciary Committee, they are eligible for a formal confirmation vote by the full Senate. In legislative parlance, their nominations are “placed on the Executive Calendar” to await a vote by the full Senate.
Debate: According to Senate rules, senators can debate a nomination for an unlimited amount of time unless a supermajority (60 senators) goes through a lengthy process to invoke “cloture” and force a vote. Before President Obama took office, cloture was only necessary for nominees who faced particularly strong opposition from the minority. Since 2009, however, the minority has often required cloture votes on even uncontroversial nominees. This means nominees ultimately confirmed with the support of 70, 80, 90 or even 100 senators are silently “filibustered,” reducing the entire nomination process to a sluggish pace.
Vote: Once debate has ended, nominees can be confirmed by either majority vote or unanimous consent.
Commission: After the Senate has voted to confirm a judge, the nomination is sent to the president, who signs the formal commission. The nominee takes the oath of office and begins serving his or her lifetime appointment.
The Current State of the Federal Courts: a Judicial Vacancy Crisis
While the U.S. Supreme Court typically hears fewer than 100 cases each year, about 60,000 cases are filed in the federal circuit courts of appeals each year and hundreds of thousands are filed in the district courts. But without enough judges, cases can be delayed for years, forcing people to put their lives and livelihoods on hold waiting for justice.
Unfortunately, obstruction throughout the judicial selection process has caused a huge number of seats on the federal courts to remain unfilled. Many courts are so understaffed and overworked that their vacancies have been declared to be “judicial emergencies.” At the beginning of the judicial selection process, too few nominees are put forward to fill vacancies, largely because of certain senators’ unwillingness to work with the President in considering potential nominees. At the end of the process, exceptionally qualified, often unopposed, nominees have faced significant delays—and even filibusters. The net result is a judicial vacancy crisis that undermines Americans’ access to justice.
List of Judicial Vacancies – Administrative Office of the U.S. Courts
List of Pending Nominees – U.S. Senate Judiciary Committee
Judicial Emergency Maps – AFJ