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The Supreme Court Vacancy Shines a Spotlight on the Judicial Vacancy Crisis
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The Supreme Court Vacancy Shines a Spotlight on the Judicial Vacancy Crisis

The fight over the vacant seat on the Supreme Court shows the importance of the lower courts and the high cost of Senate obstruction.

In this February 16, 2016, photo, Supreme Court Justice Antonin Scalia’s courtroom chair is draped in black to mark his death at the U.S. Supreme Court in Washington. (AP/J. Scott Applewhite)
In this February 16, 2016, photo, Supreme Court Justice Antonin Scalia’s courtroom chair is draped in black to mark his death at the U.S. Supreme Court in Washington. (AP/J. Scott Applewhite)

It has been more than a week since the death of a conservative judicial titan: Justice Antonin Scalia. With the Republican members of the Senate Judiciary Committee vowing for the first time in American history to not even consider a president’s U.S. Supreme Court nominee, it is possible that the Supreme Court could have just eight members until 2017—well into the Court’s next term. If that happens, many Court observers predict that the justices will split their votes 4-4 on many of the most controversial cases. A tied vote would mean that the lower court rulings stand, even when the lower courts disagree over how to interpret important constitutional rights.

The Supreme Court often accepts cases on issues on which lower courts disagree. Litigants who lose their trials can appeal to the U.S. Courts of Appeals, or Circuit Courts, and if they lose there, they can appeal to the Supreme Court for a final ruling. But without nine justices, the nation’s lower court judges could—in effect—have the final say on many controversial issues. If circuit courts disagree on these issues, Americans could essentially have different speech, property, or due process rights, depending on where they live.

Although most Americans are familiar with the Supreme Court, many are surprised to hear that more than 900 judges have lifetime appointments on lower federal courts and hear thousands of times the number of cases that the Supreme Court hears. With an empty seat on the Supreme Court, the stakes surrounding these lower courts have been raised even higher. And yet, the Senate continues to obstruct many of President Barack Obama’s lower court nominees, leading to dozens of vacant seats and delayed justice for millions of Americans.

Supreme Court obstruction is part of a pattern

Conservative activists have long been aware of the importance of the lower courts and have used significant political pressure to keep new judges off the bench. For example, in January, the conservative group Heritage Action threatened to give legislators bad legislative scorecards if they voted to confirm any more of the president’s judicial nominees. Conservatives hope to delay the confirmation of judicial nominees until after the next presidential election, when they hope to have a more conservative president making appointments.

Even before Senate leaders refused to consider the next Supreme Court nominee, they were delaying confirmation votes on many of the president’s lower court nominees. With their latest statements, Republican Senate leaders have shown their hand. The vow from Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) and others to block a fair hearing for the president’s eventual Supreme Court nominee is part of conservatives’ larger strategy on judicial nominations: obstruct, obstruct, obstruct.

There are now 75 vacancies on the lower courts—nearly 1.75 as many as on January 1, 2015. Thirty-one of those vacancies are considered judicial emergencies, meaning there are not enough judges on those courts to hear the cases piling up. The number of judicial emergencies has increased by 158 percent since January 2015.

Despite all these vacancies, the Senate confirmed just 11 judges last year, the slowest confirmation rate in more than half a century—and that does not even account for the fact that the number of judges on the bench has increased substantially over the years. At 11 confirmations per year, it would take the Senate nearly two full presidential terms just to fill the current vacancies on our courts.

This dearth of confirmations is not due to a lack of qualified nominees. There are 34 nominees to the federal bench who are awaiting some sort of Senate action. Those nominees must be voted out of the Senate Judiciary Committee and then confirmed by a majority vote of the full Senate.

Twelve of the 34 current nominees have been voted out of the Senate Judiciary Committee with no opposition and are waiting for a vote in the Senate. For example, Waverly D. Crenshaw, Jr. recently marked his one-year anniversary of being nominated to a district court in Tennessee and is simply awaiting a floor vote. These 12 nominees are consensus candidates with the full support of their home-state senators and the Senate Judiciary Committee, yet Senate leadership continues to delay votes on their confirmation.

Twenty-two other nominees are stalled in the Senate Judiciary Committee. The vast majority of them have the support of their home-state senators. The candidates are all highly respected mainstream lawyers or judges who are rated highly by the American Bar Association. They are simply waiting for a committee hearing.

This historically unprecedented obstruction has led to record backlogs and delays in cases involving millions of Americans. These delays have consequences for real people, as well as their families, businesses, and communities. As they wait for their day in court, the harm that brought them there simply grows. Justice delayed is often no justice at all.

The effect of 4-4 Supreme Court decisions

These overwhelmed and understaffed lower courts may now determine the outcome of high-profile cases that affect millions of Americans. It is hard to overstate the legal chaos that could ensue from two Supreme Court terms with 4-4 splits on important issues. Americans could have different constitutional rights, depending on the circuit within which they live, and lower courts could have the final say in cases that affect millions of Americans.

Last year, for example, the Fifth Circuit struck down the president’s expanded Deferred Action for Childhood Arrivals, or expanded DACA, and Deferred Action for Parents of Americans, or DAPA, immigration plans for child migrants and their parents and put a national stay on its implementation. This ruling left nearly four million families in legal limbo. Unless the Supreme Court can act, these families will continue to live in fear of deportation. They will remain in the shadows rather than contributing to American society and its economy.

The Fifth Circuit also upheld a Texas law that could cause three-quarters of the abortion clinics in the state to close their doors. Under the Texas law, these clinics must meet strict requirements that have nothing to do with women’s health—such as a mandate that doctors have admitting privileges in nearby hospitals. At least one million women in Texas now live more than 150 miles away from the nearest clinic. For women who live within the Fifth Circuit—in Texas, Louisiana, and Mississippi—a Supreme Court tie means that the Fifth Circuit ruling will stand and women’s constitutional right to an abortion will be restricted simply because of where they live.

The Supreme Court will also hear an appeal from several religious-affiliated nonprofits and corporations that argue that their religious rights are violated by the Affordable Care Act’s, or ACA’s, requirement that they either offer employees health insurance with contraception coverage or sign a form that indicates their religious objection. The employers in the suit argue that merely signing the form violates their religious beliefs. Eight different circuit courts have ruled that the rights of religious nonprofits were not violated, since the ACA allows them to avoid paying for the insurance by signing the form. The Eighth Circuit, however, ruled that nonprofits in North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, and Arkansas can deny women equal access to insurance coverage for preventative health care. If the Supreme Court splits 4-4 on this case, then the Eight Circuit decision will stand.

The circuit courts are divided on important business cases as well. Circuit courts are split on the issue of whether a federal statute creates an implied right for investors to sue mutual funds for excessive fees. In addition, another federal appeals court recently struck down the law that allowed a federal agency to revoke disparaging trademarks—such as the Washington Redskins’ trademark, which was revoked in a 2014 Fourth Circuit case. Without a final ruling from the Supreme Court, such murky legal landscapes could make it very difficult for businesses to operate in a national market.

The circuits are split on issues that affect states’ rights, conflicts between states, dozens of areas of federal law, and many amendments to the U.S. Constitution. The only court in the United States that can resolve these disputes for the country’s entire population is the Supreme Court. If the Supreme Court cannot muster a majority of votes, then these untenable situations could continue for years.

End the obstruction of judicial nominees

Despite the crucial role of these judges, the stalling tactics in the Senate have reached new heights. The American people cannot allow these judicial positions to remain empty. For many of the vacancies, the White House has been waiting for months—or even years—for some home-state senators to recommend nominees, as Senate tradition entails. If Senate leaders act on their stated plan to obstruct the president’s impending Supreme Court nominee, they could create the longest Supreme Court vacancy since the founding of our nation.

Voters who want America’s courts filled with fair, qualified judges should demand that senators end their obstruction and fill the empty seats on federal courts. The political fight over the current vacancy on the Supreme Court spotlights the importance of the lower courts and the damage caused by the Senate leadership’s strategy to obstruct those nominees at all cost.

The lower federal courts are divided on crucial issues, leaving millions of American citizens and businesses in legal limbo until the Supreme Court can issue a final ruling. As the American people are saying, it is time for the Senate to do its job and confirm good judges to the bench.

Jake Faleschini is the Director of Courts Programs with Legal Progress. Billy Corriher is the Director of Research for Legal Progress.

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Authors

Jake Faleschini

Director, Federal Courts Program

Billy Corriher

Deputy Director, Legal Progress

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