In the wake of the recent death of Associate Justice Antonin Scalia, politicians and the public have been debating the timing of a Supreme Court nomination and the potential effects of leaving the seat empty for over a year.
Sadly, there has been no similar public discussion of the 76 vacant judgeships on the 94 federal district courts and 13 federal appellate courts that hear the thousands of cases each year that never reach the Supreme Court. Far too often, the process of filling judicial vacancies is also marked by the same political motivations currently on display.
In recent years, the federal judiciary has faced growing caseloads that significantly outpace the relatively static number of federal judges. Between March 2013 and March 2014, more than 300,000 civil cases were filed in federal district courts. Nearly 87,000 criminal cases were also filed. Because of the heavy workload, delays in filling seats on the federal bench have severe effects on the administration of justice in the United States.
In the Eastern District of North Carolina, capacity challenges are compounded by the longest standing vacancy in the federal judiciary. In 2005, Judge Malcolm Howard, one of four then-active federal judges sitting in the Eastern District, vacated his seat and assumed part-time senior status with the court. More than a decade later, Howard’s former seat remains unfilled, and there are no nominees. This is the longest current vacancy in the federal judiciary by more than four years and the second-longest vacancy on the federal courts in at least the last three and a half decades.
Today, the Eastern District struggles under a massive backlog with just three active judges. Although three part-time senior judges, all over age 75, continue to hear cases, as of June 2015, 16.3 percent of civil cases in the Eastern District were over three years old – the highest percentage of any district court in the Fourth Circuit.
The Eastern District of North Carolina spans a 44-county area reaching from the coastline to the state Capitol in Raleigh. North Carolina’s “Black Belt,” the historical home to much of the state’s African-American population, accounts for a large portion of the Eastern District’s jurisdiction, and African-Americans represent nearly 27 percent of North Carolinians who live in the Eastern District.
However, no African-American judge has sat in the Eastern District in the court’s 143-year history. Even the U.S. Court of Appeals for the Fourth Circuit, which hears appeals from North Carolina, South Carolina, Virginia, West Virginia and Maryland, did not seat its first African-American judge until 2000 and its first Latino judge until 2010.
In June 2013, President Barack Obama nominated Jennifer Prescod May-Parker to fill the Eastern District’s vacant judgeship. May-Parker, the chief of the Appellate Division at the U.S. Attorney’s Office in the Eastern District, would have been the first African-American person to serve as a federal judge in North Carolina’s Eastern District. However, her nomination was blocked by N.C. Sen. Richard Burr and was never even considered by the Senate Judiciary Committee.
Ironically, Burr recommended May-Parker as a potential nominee in 2009. Customarily, both senators from the home state of a federal judicial nominee submit “blue slips,” opinions supporting the nomination before a Judiciary Committee hearing moves forward. Burr never turned in his blue slip after May-Parker was nominated. Although Obama submitted May-Parker’s nomination a second time in January 2014, Burr continued to inexplicably block the nomination.
So while the high-profile and abstract constitutional debate swirls around a replacement for Justice Scalia, critical vacancies on the lower courts remain ignored, and the wait for those seeking relief and justice grows longer. In Eastern North Carolina, they’ve been waiting 10 years for a new judge – and 143 for one who reflects the diversity of the region.
Mark Dorosin is managing attorney and Brent Ducharme is attorney-fellow at the UNC Center for Civil Rights.