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Would-Be Federal Judges Face The Washington Waiting Game

Caitlin J. Halligan, shown in 2005, waited more than 700 days in the last Congress for a vote on the Senate floor before she was filibustered, the White House says. She was nominated again last month.
Jim McKnight
Caitlin J. Halligan, shown in 2005, waited more than 700 days in the last Congress for a vote on the Senate floor before she was filibustered, the White House says. She was nominated again last month.

To understand what's happening with federal judge vacancies, consider this: The Senate voted Monday night to approve the nomination of Robert Bacharach to sit on the federal appeals court based in Denver.

Bacharach had won support from both Republican senators in his home state, and his nomination was approved unanimously. But he still waited more than 260 days for that vote.

Those delays are becoming a source of frustration for White House counsel Kathryn Ruemmler. She says Congress is falling down on its job, leaving close to 90 judgeships, or about 10 percent of the federal judiciary, unfilled. Even candidates who aren't controversial are waiting for months.

"I think the president's message is that this unnecessary and needless delay needs to stop," Ruemmler says. "This is a commitment that the Senate and the president need to make to the American people — that we are going to do what we can to ensure that the third branch of government is fully staffed with the highest quality nominees. And he is doing everything he can in order to ensure that that happens, and he's asking for the Senate to join him in that effort."

But Carrie Severino, the chief counsel at the Judicial Crisis Network, a Republican group that fights left-leaning nominees, says when it comes to judges, the president has only himself to blame. President Obama "hasn't made it a priority in his presidency. He has legislative priorities; he has priorities in terms of really amassing power in the administrative and the executive branch, but hasn't really focused on judicial nominations," she says.

Severino says one result is that Obama ended his first term with more judge vacancies than when he took office back in 2009 — not a bad thing for Severino and her allies.

"From a Republican perspective, we got lucky," Severino says.

But experts who study judge nominations say that could be starting to change. The president has been getting grief from liberal groups about the slow pace on judges. The White House moved to send a bunch of nominees to the Senate last month, the same day Congress reconvened. Included in that batch was Caitlin Halligan, a nominee for the appeals court in Washington, D.C.

White House officials say Halligan waited more than 700 days in the last Congress for a vote on the Senate floor before she was filibustered. Republicans don't like her positions on gay rights and guns. Severino says Halligan could provoke a firestorm all over again this year.

"She's probably the most controversial nominee that the president has thus far. So if he does bring her up, it's going to be a huge fight," Severino adds.

But most of the president's judge nominees generate very little opposition once they finally get a vote.

Russell Wheeler of the Brookings Institution, who studies judicial nominations, says the administration's got a point when it blames the Senate for those long waits.

"It's just taking an awful lot longer to get this done ... and I think that has several consequences," Wheeler says. "Not only does it leave the judgeships vacant. It's got to discourage a lot of people from even wanting to get involved in it."

Vermont Democrat Patrick Leahy, the chairman of the Senate Judiciary Committee, calls the lag times "a prescription for overburdened courts and a federal justice system that does not serve the interests of the American people."

For nominees to the lower courts, there's some room for hope this year. The Senate agreed to limit floor debate on their nominations to two hours, from 30 hours before, which means they're likely to move a little faster this time around. No such deal for appeals court nominees, though, Wheeler says.

"The whole thing is just broken," he says. "And it just is an indication that, frankly, the government can't do basic ministerial work that it has to do. That's what it comes down to."

That's a sentiment that's become all too familiar about Washington.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Carrie Johnson is a justice correspondent for the Washington Desk.
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