Key judicial seats still empty

by Emily Smith, 2L
Law Weekly

It's a seat that has been sitting empty for almost six years.  No one, however, would argue that it is uncomfortable.  Instead, its former occupants have carved deep initials into the arms.  The illustrious include Chief Justice Warren Burger, almost-Justice Robert Bork, as well as current Justices Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas.  The U.S. Court of Appeals for the District of Columbia Circuit has been called the most influential and powerful court in the nation, aside, of course, from the U.S. Supreme Court.  It was, in fact John Roberts' departure to that court that left this seat empty. 

Now, GULC alum Caitlin Halligan seems poised to fills its frame, and most seem to think she is eminently up to the task. She certainly has Professor Peter Edelman's vote, who served as a mentor to Halligan during her time at GULC.  He even attended her confirmation hearing on February 2. At that hearing, Senators Charles Schumer and Sheldon Whitehouse praised her as a “tough prosecutor,”and someone who is very well recommended by the law enforcement officials who worked with her.  She has a “brilliant legal mind” and will be a “first rate judge.” 

As a fresh GULC graduate, Halligan actually began her career by working for the same circuit she hopes to join, clerking for Patricia Wald. She went on to clerk for Justice Stephen Breyer, and then served as Solicitor General of New York, as well as general counsel to the Manhattan District Attorney's office.  Yet, though she may be a “brilliant counselor,” Halligan will not be confirmed without a fight.  Republicans are attacking her judicial and advocacy record.  According to the Washington Times, there are “disturbing discrepancies” in her testimony, requiring a full investigation before her nomination is approved. 

If her nomination is denied, she will not be the first to be barred from filling Robert's vacancy.  In 2006, Peter Keisler's nomination languished in committee for 2 ½ years, despite Republican consensus that he was superbly qualified for the position.  The problem is that the D.C. Circuit seat is pretty much as close as a judge can get to the Supreme Court's sacred steps, and thus  frequently serves as a political battlefield.  Both Republican and Democrats have blocked potential candidates over the years, including Elena Kagan and, even initially, John Roberts. 

While perhaps the most high profile, the D.C. Circuit court seat is not even the most pressing problem.  Currently, there are 101 empty federal judgeships, and that number is increasing every week.  Around the country, people are beginning to call this a crisis.  Now, 46 judgeships are classified as “emergencies.”  As acknowledged by Senate Judiciary Committee Chairman Patrick Leahy, this allows the federal courts to ignore the right to a speedy trial, and in an “unprecedented” and desperate move, essentially throw out the Constitution.
When President Obama took office, there were 54 federal judicial vacancies, and initially, most Democrats saw this as an opportunity.  Under Bush, the federal circuits were overwhelmingly conservative, and the number of vacancies could have given Obama a chance to change the political profile of the judiciary.  However, the White House got off to a slow start, and whether due to the Obama administration's “large legislative agenda, two time-consuming Supreme Court vacancies” or the “increasingly complicated background review process for nominees,” White House counsel Robert Bauer agrees that they failed to act. 
Yet, the problem is not only a lack of nominations. 

The confirmation process has also been slow and contentious.  According to the Washington Post, between 2006 and 2008 – Obama's first two years in office – only 60 judges were confirmed by the Senate.  This is the lowest number in 35 years.  In 2010, and in a fit of frustration, Chief Justice John Roberts highlighted this problem.  He wrote about the “acute difficulties for some judicial districts,” and what he feels is the cause.  As he said in his State of the Judicial report, “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations.”  In 2011, Time Magazine put it more succinctly.  “Republicans and Democrats [need] to stop bickering and start confirming judges!”  Though it may be called “vetting,” there seems to be an element of payback going on.   

Encouragingly, Senate Majority and Minority leaders recently agreed as “gentlemen” to move forward with the judicial nomination process in a more orderly and less combative fashion.  However, while Halligan's nomination is a step in the right direction, it may still be a long process before she actually sits down in the D.C. Circuit's longer-empty chair.