Analyst Suggests Eye-Popping Costs of Judicial Vacancies

Just how extensive is the federal judicial vacancy crisis? A former Justice Department official tries to measure judicial vacancies in terms of judicial work lost and money wasted, and he offers some eye-popping numbers.

Michael L. Shenkman, a fellow and lecturer-in-law at Columbia Law School’s Center for Law and Politics, writes in a Hill newspaper blog commentary that during President Obama’s first term, district judgeships sat empty for more than 100,000 days, “representing more than 275 lost years of active judicial work.”

“[D]elays leave taxpayers on the hook for empty courtrooms and an idle court apparatus,” he continues, attaching a price tag of about $160 million to “the net waste of public resources from vacant district judgeships” in Obama’s first term.

Shenkman says a recent Senate rules change (see Gavel Grab) represents an advance toward getting more judges confirmed, but that only about one-fifth of the lost judicial work that he calculated can be blamed on Senate floor delays in confirming judges. He calls for broader change:

“It is time for the president and the Democrats in the Senate to insist on a more efficient process for confirming federal district judges. District court nominees have become mired in the confirmation mess because they follow the same procedural path as appellate judges. Yet no one in the Senate or elsewhere has articulated a rationale for politicizing and obstructing trial judge nominations.”

Shenkman served as senior counsel in the Justice Department’s Office of Legal Policy in 2009 and 2010.

A Blog of Legal Times post, meanwhile, highlighted “judicial vacancies stretching into the thousands of days” before nominations even reach the Senate, according to an Alliance for Justice study.

“For those that haven’t paid attention, there are some shockers,” BLT reported. “For example, the U.S. Court of Appeals for the Ninth Circuit has a position that has remained open for 3,200 days because of a dispute between California and Idaho senators about which state the nominee should be from.”



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