Now that the Senate has confirmed U.S. Supreme Court Justice Elena Kagan and returned from its August recess, this is an ideal moment to analyze the state of lower federal court judicial selection. The federal judiciary currently has 102 openings in the 858 appellate and district court judgeships. The vacancies first reached 90 last summer and have since remained above that number. These unfilled seats, which constitute 12% of the positions, erode swift, economical and equitable case disposition. Accordingly, President Barack Obama should expeditiously nominate, and the Senate must promptly confirm, lower-court judges, so that the bench will have a full contingent of members.
For nearly a quarter century, Republican and Democratic charges and recriminations as well as incessant paybacks have troubled judicial appointments mainly because of divided government. Democrats currently control the executive and the Senate, but they should continue attempting to cooperate with Republicans and stop or temper these unproductive dynamics. Some observers criticized Obama for nominating too few candidates in 2009, but the White House has quickened the pace, tendering substantially more nominees so far this year than throughout 2009. Out of the 102 vacancies, he has now nominated candidates to fill 50. The administration has thoroughly consulted by soliciting the advice of Republican and Democratic senators from states in which openings arose before official nominations. Obama has tapped consensus nominees, of balanced judicial temperament, who are very smart, ethical, hardworking and independent, as well as diverse in terms of ethnicity, gender and ideology. Sen. Patrick Leahy (D-Vt.), who chairs the Senate Judiciary Committee, has expeditiously conducted hearings and votes, sending nominees to the floor where most have languished for months awaiting votes.
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