In California, migrant workers have waited over three years to hear from a federal court on whether they could proceed with a class-action lawsuit against their employer. If successful, thousands of migrant workers would receive justice for alleged wage theft in the form of backpay. But with judicial vacancies on the rise, justice has been hard to come by for these workers. And due to the transient nature of migrant labor, each passing day makes it more likely that these workers will relocate, become impossible to reach, and lose their chance of receiving justice.
Stories like this one are becoming commonplace, as the increasing number of judicial vacancies (74 at present) has led to the largest backlog of federal criminal and civil cases in American history. Yet, despite the courts’ impact on consequential and timely issues, the process of appointing a new federal judge can be arduous and slow.
As explained in our Just a Judge video, a judicial vacancy occurs when a judge retires, steps down, or is otherwise unable to perform their duties. The process from there is complex: following the president’s nomination of a qualified judge (usually following consultation with home-state senators), senators from the home state of the nominee are then responsible for submitting blue slips of paper to demonstrate their approval. The Senate Judiciary Committee then holds a hearing and vote, and only then is there a confirmation vote in the Senate.
Unfortunately, this confirmation process leaves our judicial system vulnerable to partisan obstruction by the legislative branch. Home-state senators often delay their submission of the blue-slips, and senate leadership regularly delays scheduling the requisite hearings and votes. As a result, in 2015, the Senate confirmed judicial nominations at the slowest rate since 1960, which means many judicial vacancies have remained open for months and, in some instances, years.
The large number of vacancies has wreaked economic havoc on communities. In Texas, which has the most vacancies of any state, a 2015 study by the Perryman Group revealed that if two judicial vacancies were filled, it would likely lead to the creation of over 78,000 jobs and an increase of $11.7 billion in economic activity by 2030. The study found that fully-staffed courts lead to increased personal income, worker earnings, and retail sales “by reducing uncertainties and the time required to resolve business disputes.”
Even more alarming is the federal backlog’s effect on criminal cases. The Constitution grants all persons the ability to be heard before the court; more specifically, the Sixth Amendment enshrines the right to a speedy trial. However, since 2009, the average time to resolve a felony case has doubled to 13 months. This can result in the creation of what are known as “plea-bargaining mills,” where defendants are incentivized to plead guilty (even if they are innocent) to end waiting periods spent in prison that can far exceed the actual sentence for the offense in question. Indeed, a criminal defense lawyer who practices in the Eastern District of Texas, stated that the delay in felony cases is often used by prosecutors as a “hammer” over a defendant’s head: “Plead guilty and you’ll be out of jail.”
It is clear that the political jousting that occurs throughout the judicial confirmation process is having unintended effects that harm everyday Americans and create instability in the judicial system. This is the same system in which, just a few months ago, the U.S. Supreme Court heard a challenge to the affirmative action policy at the University of Texas. And this month, the Court heard arguments about whether unions can require contributions from employees who benefit from union-negotiated conditions. Now, the Supreme Court is gearing up to hear oral arguments challenging President Obama’s immigration actions.
And so, in order to ensure the functioning of this vitally important system and prevent further infringement on Americans’ constitutional rights, the Senate needs to do its job and hold timely votes on federal judicial nominees. While the judiciary may not be as glamorous as the executive or legislative branches, it is vital for us to invest more time to learn about the judicial process, fill our vacancies with judges whose diversity reflects that of this country, and hold our Senate accountable for denying Americans their day in court.
Let’s start today. Learn more about the federal judicial process through this short and sweet video: Just a Judge.