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.
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.

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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