The US federal court system has long been the envy of the world for its prompt, inexpensive and fair case resolution. That state of affairs may not continue, however, thanks to a growing judicial vacancy crisis, which has left 72 out of 846 judgeships empty. The open seats delay justice for millions of parties with cases in federal court. And, like so much else that goes awry in our civic life, the blame lies with political gridlock.

Judges, as dictated by the US constitution, are nominated by the president and confirmed by the Senate. But if bipartisan rancor prevents agreement, positions remain unfilled. In 2015, the Republican majority allowed merely 11 confirmation votes for judgeships – the fewest since 1960.

It’s all exacerbated by the fact that this is an election year; the Republican majority in the Senate hopes that the next president will be someone whose nominations will better reflect their interests. But this is not standard operating procedure; in 2008, the seventh year of President George W Bush’s presidency, a Democratic Senate confirmed 40 judges.

Before Barack Obama was elected president, regular order would have mandated confirmation before the December intersession recess of all 19 pending judicial nominees, whom the Senate judiciary committee had approved without opposition. The Republicans, who recaptured the Senate in November 2014, granted none of them a vote last year.

The delayed nominees include five US court of federal claims nominees whom the Senate judiciary committee first approved back in autumn 2014 and again in February 2015 and twice sent to the Senate floor. However, the Senate has yet to allow a vote on any of these nominees.



Republicans also postponed ballots on four district court nominees, who were first nominated in autumn 2014 and renominated in January 2015. The nominees included two for judicial emergency vacancies who enjoyed strong support from their Republican home-state Texas and Utah senators, all of whom are committee members. The Senate finally approved them in April and May 2015. Judicial emergencies have soared from 12 to 32 since the Republicans took the Senate majority.

The delays have ramifications even beyond preventing timely justice. Delayed scrutiny forces many highly qualified, so-called “consensus nominees” whom Democrats and Republicans support, to place their careers on hold while dissuading excellent candidates from envisioning judicial service.

Ever since Republicans recaptured the Senate, their leadership has pledged to restore “regular order” – a term that ostensibly signifies the end of partisan gridlock.

If the severely delayed confirmation process witnessed in the 114th Congress is what the Republican majority means by regular order, federal court litigants have reason to doubt that the party will seriously address the vacancy crisis in the Senate’s second session, which began on 11 January. The consummate irony is that Republicans recite the regular order mantra when they have so meticulously dismantled regular order in that process since 2009.