June 1, 2011 / 6:57 PM / 6 years ago

Here come the judges - Obama moves to the benches

<p>U.S. President Barack Obama speaks during Memorial Day ceremonies at Arlington Cemetery in Arlington, Virginia, May 30, 2011.Jonathan Ernst</p>

NEW YORK (Reuters) - Some of the empty seats on the bench in federal courthouses across the United States may finally be getting filled, addressing an issue the White House calls a "crisis" and which has wide-ranging ramifications.

As the partisan rancor in Washington has increased over the past decade, getting judges confirmed in the Senate has grown more and more difficult, especially under President Barack Obama who faces some 90 vacancies in federal courts.

That is higher than the average during his predecessor, and some seats have been vacant for three years or longer. In the district that includes New York City, for example, eight spots are open, the highest on that court in almost two decades.

"The president believes we must actively address the judicial vacancy crisis," White House Counsel Bob Bauer said in an email to Reuters.

The vacancies can have a trickle-down effect on the entire judicial system: increasing the workload on judges who then must delay trials. As a result, cases could be undermined if too much time passes and witnesses forget important details.

One possible reason for the uptick in action: the looming 2012 presidential election.

The White House has increased its focus on getting as many judges as possible through ahead of next year after criticism from Obama's liberal backers that the administration did not make it a big enough priority.

"The amount of resources the administration put into judicial selection is nowhere near what (President George W.) Bush put in," said Elliot Slotnick, a political science professor at Ohio State University.

Although Obama had enough Democrats to overcome procedural hurdles during the first two years of his presidency, the Senate approved just 60 appellate and district court nominees, the smallest number in 35 years.

Even with fewer Democrats in the Senate now, 24 appellate and district court judges have been confirmed this year, versus a scant 13 by this point last year. On May 17, Susan Carney won confirmation for a seat on the Second Circuit Court of Appeals after her nomination had been pending for nearly a year.


There have been plenty of partisan battles over Obama's nominees, including last month when Republicans blocked a vote on Goodwin Liu to the appeals court in San Francisco. He had publicly criticized the nomination of Samuel Alito to the Supreme Court, drawing Republican fire as an activist.

The Senate confirmed two others in close votes, Edward Chen to a California court and John McConnell in Rhode Island.

"I get the feeling that there was almost a laying down of arms at the end of the last congressional session on the judgeship issue, and a subliminal agreement that we'll get back to it in the new year," said Slotnick.

The White House and Democrats have complained bitterly that Republicans appeared to be blocking nominees just for the sake of delay, not out of opposition based on a nominee's past.

In one case, Albert Diaz was nominated in November 2009 to fill a vacancy on the Fourth Circuit Court of Appeals in Richmond, but he wasn't confirmed until 13 months later despite winning unanimous support by the Senate Judiciary Committee.

When Democratic Senator Kay Hagan tried to get a vote in July 2010 for Diaz, Republican Minority Leader Mitch McConnell objected. He didn't point to a flaw in his record, but instead he gave a speech about hold-ups of nominees by Democrats during the Bush administration.

"It's plain politics," said Sheldon Goldman, a political science professor at University of Massachusetts, Amherst. Non-controversial candidates who are eventually confirmed unanimously by the Senate are held up for months, he said.

"It's very dysfunctional for the judiciary."


In western New York, the caseload is ballooning thanks to a mix of environmental lawsuits, complex business disputes and cases stemming from plant closings and the sour economy.

Chief Judge William Skretny said the district's situation is dire because it has only four full-time judgeships, so one vacancy has a lopsided effect. A request for another judge in the district has been pending for 15 years.

Michael Green, nominated to join that court in January, is still awaiting a vote in the Senate Judiciary Committee.

"It's devastating for a district of this size to be disadvantaged this long," Skretny told Reuters. "It's very difficult to efficiently handle the cases that would get an adrenaline shot in the arm, so to speak, with a new judge."

Skretny said the district has had to come up with new ways to address case backlogs, juggling social security disputes and prisoners' rights cases between senior and magistrate judges.

The Senate may not have long to act as the partisanship will ramp up as the 2012 election shifts into high gear.

"If it's going to be a priority it's got to be one now, because the curtain will go down soon," said Slotnick of Ohio State. "He's got about a year at this point to get some judges through."

Editing by Jeremy Pelofsky and David Storey

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