Op-Ed

US court vacancies a judicial emergency

U.S. Sen. Richard Burr
U.S. Sen. Richard Burr dtfoster@charlotteobserver.com

North Carolina is home to the nation’s longest-running federal court vacancy. Recently, Patricia Timmons-Goodson was nominated to fill the post that’s been unfilled for over a decade. Sen. Richard Burr reacted to this news by vowing to block this former state supreme court justice from the federal bench.

Federal judicial vacancies occur all over the country. Right now, 60 nominees are awaiting confirmation.

Judicial vacancies have consequences. A forthcoming paper by Professor Crystal S. Yang in the American Economic Journal: Economic Policy found significant real-world effects on criminal justice outcomes during judicial vacancies. For example, prosecutors were found to dismiss charges more often during vacancies. Defendants whose cases were prosecuted were more likely to enter guilty pleas rather than go to trial.

Yang described her results “as consistent with a story in which judicial vacancies increase prosecution and trial costs.” With criminal dockets forced to do more with less, prosecutors serve a gate-keeping function to screen close cases from going to trial.

The passing of Supreme Court Justice Antonin Scalia has created the most well-known of these federal judicial vacancies. With a one-line opinion, the court recently deadlocked 4-4 on one of its most important cases of the year. In the weeks ahead, the American people will likely face more outcomes like this – leaving significant public policy problems for a future, full court.

In Friedrichs v. California Teachers Association, the court was presented with the issue of whether public sector unions could levy fees from nonmembers at their workplaces. The equally divided court offered no guidance to advocates on either side of arguably the most important labor controversy to reach the court in several years.

This is not the first time this year that the court has split 4-4, nor is it likely to be the last. In Hawkins v. Community Bank of Raymore, the court evenly split on the issue of spouses guaranteeing their partner’s debts.

On issues large and small, from the technical to the political, the court’s current composition is poised to deliver gridlock rather than dispute resolution. Harvard Law Professor Laurence Tribe has noted that without a full bench, the Supreme Court vacancy will lead Americans to “lose faith in the courts, and with good reason.”

The equally divided court imperils the ability of issues to reach final resolution. Justice Robert Jackson once noted that the Supreme Court “is not final because we are infallible, but we are infallible only because we are final.” For Tribe, the vacancy will lead to “justice divided, delayed, and denied.”

It’s all too easy to think that the Supreme Court vacancy is the only one facing the federal court system. In fact, the federal bench currently has over 84 vacant judgeships – approximately 10 percent of all federal judicial positions. In dozens of jurisdictions across the country, federal dockets are so clogged that they have been labeled “judicial emergencies.”

The vacancies on the Supreme Court and throughout the federal system threaten the ability of the judiciary to administer justice. With so many empty posts, current judges must work that much harder to respond to the needs of litigants.

It’s time for the Senate to do its job and consider the well-qualified nominees for the federal judiciary.

Tommy Tobin is a third-year student at Harvard Law School and a Teaching Fellow in the Harvard Economics Department.

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