What Filibuster-Reform Critics Forget: The Federal Judge Shortage

A noted federal appeals courts judge tries to soft-shoe last week's filibuster reform—and ends up sounding like a partisan miffed about the restoration of a fully-populated judiciary.
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Drawings by courtroom sketch artist Jane Collins, hanging on the wall of a courthouse during "Whitey" Bulger's trial in federal court. 

4th U.S. Circuit Court of Appeals Judge J. Harvie Wilkinson III, one of the more renowned jurists Ronald Reagan appointed a generation ago when the Republican president sought to reshape the federal bench with conservative ideologues, is worried that filibuster reform has come to the Senate. So much so that he quickly banged out an op-ed piece gently titled "Bipartisan approval lends a sense of balance to the judiciary" that appeared in Sunday's Washington Post, less than three days after the Senate moved to limit judicial filibusters.

Alas, he should have let the matter rest; the product here is unbecoming a federal judge, especially one as notable and as respected as Wilkinson is. Disguised as a righteous "lament"—as least that's what the National Review is calling it—the short essay instead is a polemic against what Senate Democrats accomplished last week. It frets about the possibility of future partisanship while ignoring the devastating impact recent Senate partisanship has had upon the nation's judges. Worse, it omits the judge's own role in a version of this fight that unfolded at the end of the Clinton administration. Judge Wilkinson, it turns out, isn't exactly an impartial witness in this dispute.

Judge Wilkinson wants you to believe that precluding the filibuster for federal judicial nominees (except Supreme Court justices) will unleash a wave of partisan nominations that will "damage" the judiciary by bringing ideologues to the nation's benches. But the argument proves both too much and too little. All judicial nominations ultimately are to some extent partisan affairs—as they are intended to be. And plenty of judicial ideologues have made it onto the nation's federal benches—including the Supreme Court—despite all the bipartisanship the Senate has ever been able to muster.*

Over the decades, and especially recently, Judge Wilkinson has earned a national reputation as an advocate of judicial restraint whether it comes from the right or from the left—and he deserves praise for that. But this op-ed doesn't deliver that sound message. Instead, the message here is clear (and against a great deal of evidence to the contrary): The recent use of the filibuster wasn't just partisan obstructionism but instead fostered some sort of wise "bipartisan understanding" that has helped the judiciary stay above the political fray.  

Much of what you need to know about the judge's position comes from his first paragraph. The judge begins:

Last week, with the Senate eliminating most filibusters on presidential nominees, was a sad one for the federal judiciary. It would be wholly inappropriate for a judge to apportion blame at the prospect that the voices of present and future Senate minorities have been effectively silenced in judicial confirmations. Now, even those with the most rigid and absolute beliefs can spend a lifetime on the federal bench without a scintilla of bipartisan support. That both parties have contributed to this state of affairs does nothing to lessen its damage to the federal courts.

These are terribly odd and disappointing things for any sitting federal judge, and especially this sitting federal judge, to say as 2013 nears its end. Let's take them one sentence at a time. First:

Last week, with the Senate eliminating most filibusters on presidential nominees, was a sad one for the federal judiciary.

Judge Wilkinson may be sad about last week's rule change but the hundreds of federal judges around the nation whose crushing workloads will be eased somewhat by the end of the judicial filibuster surely won't be sad when the logjam of appointments is broken and the judiciary is allowed by Congress to operate again at near capacity. I wrote about some of those judges last year when I wrote about the beleaguered Middle District of Pennsylvania. Those folks there were lucky—they eventually got the relief they needed in spite of the filibuster. But there are federal trial judges today who desperately need help—practical, hands-on help to resolve cases and controversies—that will come only when the Senate more efficiently fills those vacancies.

So while worrying that President Obama's judicial appointees now will take "disagreements personally, believing oneself in sole and permanent possession of the truth can, in countless ways, delay dispositions and corrode the quality of justice," Justice Wilkinson did not even mention, let alone "lament," the Republican-appointed judges who act that way or the fact that the Republican filibuster is largely responsible for many of the 93 current vacancies on our federal benches—more than 10 percent of the total number of judicial spots.

Nor did he acknowledge, or lament, that the Republican filibuster over the past four years has helped create or continue "judicial emergencies" in no fewer than 38 jurisdictions across the country. A "judicial emergency" occurs when a particularly busy judicial district or appellate jurisdiction is deprived of at least one of its statutorily mandated judges for at least 18 months. One such "emergency" even exists today in one judicial district in Judge Wilkinson's very own Fourth Circuit—but there is no mention of that in this piece.

Do you think the looming reduction of the number of these "emergencies" is cause for sadness among the millions of litigants impacted by them every day? Do you think that the corporation who goes to federal court for a redress of grievances only to be forced into years of delay because of understaffed benches will be "sad" that soon the nation's judicial business will more quickly be conducted? Judge Wilkinson's op-ed reads not like it was written by a jurist with 30 years of experience but by someone with no sense at all of how bad it really has been for so many of the nation's overworked, understaffed judges.

Here's Judge Wilkinson's second sentence:

It would be wholly inappropriate for a judge to apportion blame at the prospect that the voices of present and future Senate minorities have been effectively silenced in judicial confirmations.

This is hooey. First, Judge Wilkinson clearly is "apportioning" blame"—toward Senate Democrats and the Obama Administration—which is why he rushed to get his piece published. Second, and more important, Senate minorities are not silenced at all by what happened last week. Republicans on the Senate Judiciary Committee have not been deprived of their right to speak out about and vote against the president's nominees. In fact, they ought to be emboldened now to speak more forcefully when nominees come to Capitol Hill for their confirmation hearings.

Nor have Senate Republicans (and, one day, Senate Democrats) been deprived of their right to try to oppose judicial nominees on the floor of the Senate. All that Senate minorities were deprived of last week was the ability to veto judicial nominees without giving a substantive reason for doing so. All they are banned from doing now is preventing substantive votes on judicial nominees who already have been cleared by the Senate Judiciary Committee. (Instead, alas, as Jeffrey Toobin just noted, they'll instead rely upon the "blue slip" method of senatorial vetoes, relegating Southern litigants to a lifetime of court delays.)

Here's the next sentence from that first graph of Judge Wilkinson's piece:

Now, even those with the most rigid and absolute beliefs can spend a lifetime on the federal bench without a scintilla of bipartisan support.

Who exactly is Judge Wilkinson talking about? Surely not the three nominees to the D.C. Circuit Court of Appeals whom Senate Republicans blocked, for no substantive reason, before the filibuster's hold was broken last week. Surely not Patricia Millett, the eminently qualified candidate, the military spouse who has argued dozens of cases before Supreme Court as a top-shelf Washington litigator. Surely not the dozens of other Obama nominees who swept through Judiciary Committee confirmations on voice votes or with other bipartisan majorities but who were subsequently stymied by the filibuster.

This sentence is insulting to every one of the pending nominees, many of whom already have been vetted by the Judiciary Committee. It also ignores the history of the past 30 years by pretending that conservative ideologues now in the federal judiciary received bipartisan support while liberal ideologues on the federal bench have not (or will not). Four Democrats voted for Samuel Alito, for example, when he was confirmed to the Supreme Court in 2006. Forty-two other senators voted against him—enough to have sustained a filibuster under the standard the Republicans were able to use until last week.

And then the final sentence from Judge Wilkinson's first graph:

That both parties have contributed to this state of affairs does nothing to lessen its damage to the federal courts.

Yes, it's true, neither side is entirely blameless. But nodding briefly to this sort of false equivalence doesn't excuse the unprecedented extent to which Senate Republicans lately employed the filibuster to keep the nation's benches empty. Nor does it explain why there are still so few black federal judges on benches in the South, where the population of black citizens remains proportionately higher than they are in other regions of the country. Shouldn't such lingering obstacles to judicial diversity count in evaluating the "damage" done to the federal courts?

In this regard, it's instructive to know that Judge Wilkinson has been in this position before. In 2000, when his Fourth Circuit itself was under a "judicial emergency," Judge Wilkinson maintained that his court had enough judges despite its vacancies. In other words, he presaged the dubious argument made recently by Sen. Charles Grassley, the Republican from Iowa, who contends despite overwhelming evidence to the contrary that the D.C. Circuit doesn't need to fill its existing vacancies because it's not busy enough. Of course it is.

Worse, Judge Wilkinson took that stand even though his Fourth Circuit, encompassing a large black population in the South, had no black federal appeals court judges. In 2000, near the end of his tenure, President Bill Clinton made a controversial recess appointment of Roger Gregory, a black man, to that court. Read this piece by the great Supreme Court report Lyle Denniston for the background. Who agreed with Judge Wilkinson at the time? Sen. Jesse Helms. Judge Wilkinson, in fact, made the same argument in 2009 that he and his fellow Republicans make today: a judicial ideologue is more likely someone a Democratic president appoints to the federal bench.

It's not that Judge Wilkinson is wrong, although he is. It's not that he pretended to offer a detached, judicious view of a matter about which he clearly feels a great deal of partisan angst, although he did. It's that he chose this time—the time after filibuster abuse finally was curbed in the Senate—to publicly worry about the loss of the "center" in the politics of judicial nominations. The center is not lost. President Obama's judicial nominees, especially to the nation's federal appeals courts, have been both highly capable and manifestly mainstream. If Judge Wilkinson knows this he should have conceded so in his piece. If he doesn't know it he shouldn't be writing about the topic for The Washington Post.

  ____________________________

* In 1986, you may recall, the grand judicial ideologue of his time, Antonin Scalia, sailed through the Senate with a 98-0 vote. Wilkinson, however, had no such bipartisan luck. A former Congressional candidate who ran as a Republican, Wilkinson made it to the bench in 1984 after a Senate vote of 58-39—two short of the "filibuster-proof" mark of 60. It's quite likely Wilkinson would not have gotten a substantive vote on the floor of the Senate if he were subject to the rules that governed the Republican treatment of so many of President Obama's nominees.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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