On the day he died, Judge John Roll was waiting to speak with Rep. Gabrielle Giffords about getting an additional judge added to the 9th Circuit Court in Arizona. Giffords had been trying to help Roll deal with the massive backlog facing the state's federal courts. Roll's death will only worsen the judicial log jam as Arizona grapples with increased drug and human-trafficking cases stemming from its new immigration law. Just nine federal judges three fewer than the state is supposed to have and four less than Roll would've liked will have to tackle the growing caseload.
The Senate has confirmed only 60 of President Barack Obama's circuit and district court nominees in the past two years. That's compared to the 100 of George W. Bush's and 127 of Bill Clinton's nominees confirmed during the same period. Of the 875 federal judgeships in the country, 101 benches are empty. Forty-nine districts in 16 states have declared judicial emergencies, which allow federal judges to ignore, at least temporarily, the right to a speedy trial. "The situation is unprecedented," Senate Judiciary Committee Chairman Patrick Leahy said Thursday.
In December, Supreme Court Chief Justice John Roberts said there is an "urgent need" for Republicans and Democrats to stop bickering and start confirming judges. "Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations," he wrote in his annual State of the Judiciary report. "This has created acute difficulties for some judicial districts."
Judicial nominations have always been a flashpoint of partisanship. Confirmations to the federal bench are for life and it's not in the minority's interest to let the other party stack the courts. At the same time, the slow-walking of generally non-controversial nominees has reached new heights in recent years as Roberts notes. This week, Senate Democrats and Republicans came together to pass bipartisan rules changes and Republicans pledged not to drag out legislation that has strong support on both sides of the aisle. Judges are not expressly part of this gentlemen's agreement, but Democrats next week plan to use 13 nominations that were passed unanimously by the Judiciary Committee as a test drive of this new comity.
Republicans argue that the slow pace of confirmations is not entirely their fault. They note these 13 judges were only approved by the Judiciary Committee in last month's lame duck session. Of the 162 nominees not confirmed in the 111th Congress, 42 were pending before the full Senate while the vast majority of them, 120 or 74%, were stuck in a committee controlled by Democrats. Still, next week's votes will test Senate Minority Leader Mitch McConnell's control over his Tea Party-infused conference since the entire process could collapse if even one senator objects.
But, there is a back-up plan. The last time the Senate reached an impasse on judicial nominations, in 2005, the G.O.P. leadership threatened to do away with filibusters for judgeships, a move known as the "nuclear option" because it would have brought the Senate to a standstill. At the time, a group of 14 moderates seven Republicans and seven Democrats came together to push through the less controversial nominations. Senator Ben Nelson, a Nebraska Democrat, who led the original Gang of 14 is prepared to again step in and reform a new gang of moderates unless, of course, the Senate really has become more civil.