an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why the 2010 election was good for the federal judiciary
The 112th Congress will convene next January with Republicans holding 47 seats in the Senate, having gained six seats in the November election. This is good news for the federal judiciary.
With Democrats and Independents holding just 53 seats, there will be no strategic retirements at the Supreme Court. There is thus little likelihood of the White House and the Senate being preoccupied, as they have been the past two summers, with a Supreme Court nomination hearing. Few circuit court nominees are likely to be brought to a confirmation hearing in the next two years (and fewer still to a final vote).
The focus of the White House and of the Senate Judiciary Committee can therefore shift to district court nominees, who traditionally have generated less controversy. This will be a healthy development.
Currently, there are 111 vacant seats in the federal courts. Of these, 88 are district court seats. To the extent the federal judiciary is understaffed, it is understaffed at the district court level.
Filling the vacant district court seats is more important than filling the open circuit court seats. Most cases are resolved in district court. District courts also have less capacity to take on additional cases than do circuit courts, which have fewer fixed obligations and greater control over scheduling and disposition of cases.
In the past, the Obama White House has shown a preference for filling circuit court seats. There are currently nominations pending for all but eight of the 23 vacant circuit court seats. By contrast, of the 88 district court openings, there are 40 seats for which the President has not named anybody.
During the next two years, the White House and the Senate Judiciary Committee should focus on filling district court seats. That is a manageable task at a time when the Senate is nearly evenly split.
The White House may have already received this message. Since the November election, President Obama has made fourteen judicial nominations. Thirteen of those nominations are to fill vacant district court seats. This approach is wise and should be continued. Posted
by Jason Mazzone [link]