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Judicial Confirmation Delays Plague Federal Courts

By Robyn Hagan Cain | Last updated on

Can justice be served if there aren't enough judges to hear cases?

As of July 28, 2011, there are 90 vacancies in the U.S. Courts, but only 53 pending nominations. Of those vacancies, 37 are classified as judicial emergencies. The problem is not a lack of qualified jurists; it's bureaucratic obstinance.

For example, President Barack Obama's Ninth Circuit Court of Appeals nominee Goodwin Liu, a Berkeley law professor, waited in confirmation limbo for almost a year before withdrawing his nomination. But Liu was not left empty-handed; California Governor Jerry Brown nominated Liu to the state's Supreme Court last week.

Sixth Circuit Court of Appeals Judge Jane Branstetter Stranch likewise spent a year navigating the treacherous waters of Senate confirmation before she was approved. The kicker? Obama-nominee Stranch emerged from her Judiciary Committee hearing with a 15-4 vote, and received bipartisan support from Democratic Majority Leader Harry Reid and Republican Conference Chair Lamar Alexander; hers was not a contentious nomination.

Whether nominees are approved after prolonged debate or awarded state judicial consolation prizes, litigants in the federal court system suffer. Federal judges have been retiring at a rate of one per week in 2011, increasing workloads dramatically and delaying trials in some of the nation's federal courts, reports The Washington Post. The result is federal judges commuting long distances to hear cases, and relying on older, "senior judges" to shoulder the burden.

The Congressional summer recess begins on August 8, after which the Senate cannot resume the business of confirming judicial nominees until September 6. The problem is unlikely to be remedied before the current break. The question remains: will the Senate be mindful of the issue and take responsibility upon its return or will it continue avoiding judicial business as usual?

For more information on the perils of Senate confirmation delays, check out FindLaw's article on confirmations in the 112th Congress.

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