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Filibustering Federal Judges

On March 22, The New York Times reported that President Obama had withdrawn the nomination of Caitlin Halligan to serve on the federal appeals court in Washington, D.C.  To get an up-or-down vote on her nomination, Senate rules require 60 votes to close debate and proceed to a vote; Democrats had only 51 votes (hint: Ted Cruz and John Cornyn weren't among them).

This filibuster is significant.  As the Times put it:

"The United States Court of Appeals for the District of Columbia Circuit is widely viewed as the most important federal appellate court because it reviews many cases on the government's authority."

Read more about why this matters below the jump.
The D.C. federal appeals court has frequently been the last stop for judges before they ascend to the U.S. Supreme Court.  Recent examples of this are Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Ruth Bader Ginsburg.  Former Chief Justices Fred Vinson and Warren Burger also served on the court prior to their terms on the U.S. Supreme Court.  

Besides being a high stakes nomination for the president, the Senate Republicans' filibuster on grounds of "judicial activism" is emblematic of another problem. Despite the importance of the D.C. court, it currently has four vacancies on an 11 member bench; notably, Halligan was being nominated for a seat vacated by John Roberts when he left to become Chief Justice of the Supreme Court - in 2005.

As Progress Texas pointed out in March, the problem is ongoing and widespread.  In addition to the four vacancies on the D.C. appeals court, there are six vacancies in Texas, and two vacancies on the 5th Circuit Court of Appeals (the federal appeals court in Texas).

Jeffrey Toobin, of The New Yorker, also highlighted the scale of the problem in terms of partisanship:

"Bush's nominees got votes within weeks; Obama's take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can."

"For example, eighteen district court nominees, all uncontroversial, are currently awaiting votes on the floor. All will be confirmed eventually, but Mitch McConnell, the Senate Minority Leader, parcels out agreements to take votes just one or two judges at a time."

But what about numbers? Just how widespread is the problem, really?

The Alliance for Justice tracks judicial vacancies without nominations and offers the following as an example:

"When it comes to seats on federal district courts, there have been delays of two years or more in sending a nominee to the Senate in five states:

• Eastern District of North Carolina: 2,654 days

• Western District of Texas: 1,650 days

• District of Kansas: 1,163 days

• District of Arizona: 1,049 days

• District of Massachusetts: 889 days"

The Texans for a Fair Judiciary Campaign had this to say:

"There are currently no nominees for the five current or one future judicial vacancies in Texas. This does not include the two vacancies from Texas on the 5th Circuit Court of Appeals which will come from the White House. All other nominees come from our U.S. Senators (John Cornyn and Ted Cruz) through a program called the Federal Judicial Evaluation Committee (FJEC). This committee lacks diversity, is private, and has not submitted any names to the White House for the President to consider or nominate."

The campaign similarly tracks the vacancies in the Texas federal courts that have been open since 2008.

And our own research last year provided hard data from the U.S. Courts system website itself.  

It's been a year.  Nothing has happened.  

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