Federal Courts Breaking Under Strain Of The Vacancy Crisis

Later today, the Senate is expected to confirm two judges to one of the most understaffed courts in the country, and this vote is long overdue. Three of the four active judgeships on the Central District of Illinois are currently vacant, and the nominations of Justice Sue Myerscough and Judge James Shadid to fill two of these seats have twice received the Senate Judiciary Committee’s unanimous approval. Nevertheless, Myerscough and Shadid have waited months for a confirmation vote despite the broad bipartisan support both nominees enjoy.

Yet Myerscough, Shadid — and the Illinois residents who will now have restored access to justice — are in many ways the lucky ones. The vacancy crisis has become so severe in the District of Rhode Island that its chief judge has been forced to ship civil cases to judges in New Hampshire and Massachusetts — a solution that only serves to delay justice in those two states.

Yet GOP senators are blocking Obama’s nominee to the Rhode Island court, an attorney named John McConnell, because the right-wing Chamber of Commerce objects to the fact that McConnell once represented the State of Rhode Island in a suit to get a lead paint manufacturer to clean up the damage caused by its toxic product. Other nominees are being blocked solely so that they can be used as bargaining chips to prevent completely unrelated messages from passing the Senate.

Indeed, because of the Senate’s inability to do its job, federal judges are now retiring far faster than the Senate is confirming new ones. If this pace does not speed up, half of all federal judgeships will be vacant by the end of the decade.

To understand what America will look like as its bench slowly empties out, one needs to look no further than the southern border, where a spike in criminal and immigration cases has left border courts barely able to function. At a recent panel sponsored by the Brookings Institution, Texas federal Judge W. Royal Furgeson explained just what passes for justice in the struggling border courts:

[A] normal federal court will handle during this period of time something like 75 to 85 to 90 criminal cases and I was handling 450. . . . I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court. And I felt like I was in night traffic court.

The problem, of course, in night traffic court if my client got fined it was going to be a couple of hundred bucks at the most, and the problem that I had with the defendants before me, they were looking at years — potentially years and years in a federal prison. And I was able to give them about as much attention as I could see those traffic judges giving their — the defendants before them attention when the fines were about $100 or $200. It was not a good feeling and federal judges all across the border continue to deal with this problem of not having the time it takes to really consider what they’re doing, especially in sentencing. And I don’t think there’s a federal judge in American that will tell you — that will disagree with this statement. The hardest job we have is to sentence human beings. You know, it’s something to judge another human being. And it’s a very hard job. And to feel like you’re not being able to give it near the attention it deserves creates a desperate sense of failure on your part.


Judge Furgeson’s tale is the border’s present, but if the Senate doesn’t get its act together, it will also be America’s future.