Federal judges in New Jersey have struggled with a workload approaching 700 cases each, nearly double what's manageable, because of judicial vacancies. In Texas, close to a dozen district judgeships remain open, more than in any other state.
Senate confirmation of President Barack Obama's nominees slowed to a halt this election year, a common political occurrence for the final months of divided government with a Democratic president and a Republican-controlled Senate. The vacancy on the Supreme Court attracted the most attention as Republicans refused to even hold confirmation hearings for Merrick Garland, insisting that the choice to fill the vacancy created by the death of Justice Antonin Scalia in February rests with the next president.
But more than 90 vacancies in the federal judiciary are taking a toll on judges, the courts and Americans seeking recourse. Obama has nominated replacements for more than half of those spots, including 44 nominees for the district court and seven for the appeals court. Yet the Senate has confirmed only nine district and appeals court judges this year — and only four since Scalia died.
The U.S. court system has declared 35 of the vacancies judicial emergencies, a designation based on how many filings are in the district and how long the seat has been open.
The nominees pending before the Senate include chief of the criminal division in the U.S. Attorney’s Office, Winfield Ong, who was approved by the Senate Judiciary Committee for the U.S. District Court for the Southern District of Indiana. Also, former Indiana Supreme Court Justice Myra Selby has been nominated by Obama for the 7th Circuit Court of Appeals.
Senate Democrats, along with some Republicans who want to fill vacancies in their home states, are pushing Senate Majority Leader Mitch McConnell to hold confirmation votes in the lame-duck session between the election and the end of the year. But McConnell has said repeatedly that Obama has already gotten more judges confirmed over his eight years in office than President George W. Bush did.
"I think President Obama has been treated very fairly by any objective standard," McConnell, R-Ky., said last month.
The Senate has confirmed 329 of Obama's federal judicial nominees to lifetime appointments; 326 federal judges were confirmed under Bush. Obama prevailed in part because Democrats controlled the Senate for six of his eight years. Both Obama and Bush have had fewer confirmations than previous two-term presidents Bill Clinton and Ronald Reagan, who had 377 and 382 federal judges confirmed, respectively.
But Democrats counter that they confirmed 68 judicial nominees after taking control of the Senate in the last two years of the Bush administration. Republicans have only confirmed 22 nominees since taking control of the Senate early last year.
"These vacancies make it harder for the federal courts to do their job," said Sen. Dick Durbin of Illinois, the No. 2 Senate Democrat. "Right now there are 30 outstanding judicial nominees who have been reported out of committee and who are waiting for a vote on the Senate floor, but the Republican majority will not give them votes even though some of these nominees have been waiting for nearly a year and even though they would be easily confirmed. "
In Texas, there are 11 district court seats open and some of the districts are along the case-heavy border with Mexico. Obama has nominated replacements for five of the open district seats in Texas, and the state's two Republican senators support them. But none has received a vote.
"There are judges that want to retire but they are holding onto their seats because they know they may not be replaced for four to five years," said Phillip Martin, deputy director of Progress Texas, a liberal advocacy group in Austin.
Those pushing McConnell to move on the nominations are hoping that if Democrat Hillary Clinton wins, McConnell will hold votes on the current nominees since she is likely to re-nominate many of the same judges. If Trump wins, the process starts anew.
Home state senators typically work with the president, regardless of party, to choose judges for federal district courts. Tennessee's two Republican senators back Edward Stanton, a nominee for a district court seat in that state, and Republican Sen. Pat Toomey, who is in a tough re-election fight, has been pushing for confirmation of several Pennsylvania judges.
One of the nominees waiting the longest for a vote is Julian Neals, nominated in February 2015 to fill the seat in New Jersey's 3rd District. The state has another district court vacancy as well, but Obama hasn't nominated a replacement.
Judge Jerome Simandle, the chief federal judge in New Jersey, told the state's bar association in May that the vacancies have impaired their ability to promptly resolve cases. He said that the weighted caseload for judges in the state at that time was 700, compared to a national average of about 430.
"We desperately need a new judge in the federal courts in New Jersey just based on the sheer numbers that statistics bear out," said Thomas Prol, president of the New Jersey State Bar Association.
New Jersey Sen. Cory Booker tried to move Neals' nomination, but McConnell blocked him. Neals and Tennessee nominee Stanton — who are both black — were both up next on the Senate calendar.
"Continued judicial vacancies means the American people must wait a year or two or longer to receive justice in a case," Booker said.