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How to Secede From the Union, One Judicial Vacancy at a Time

By refusing to help fill the nation's empty trial benches, some senators are intentionally creating a vacuum of federal legal authority.
A federal courthouse in San Antonio, part of the Western District of Texas (Eric Gay/Associated Press)

Secession can come in many forms—just ask anyone in Texas who cares to discuss the issue with you. One particularly effective strain currently wending its way through America has been largely ignored by reporters, political analysts, and legal scholars, even though it's a bipartisan problem within the federal government itself that undermines the rule of law and hinders the lives of millions of citizens. 

Call it secession by attrition. Some Republican senators and a few Democrats as well are starving the federal courts of the trial judges they need to serve the basic legal needs of the litigants who come to court each year seeking redress of their grievances. One federal-trial seat in Texas has been vacant for 1,951 days, to give just one example. The absence of these judges, in one district after another around the country, has created a continuing vacuum of federal authority that is a kind of secession, because federal law without judges to impose it in a timely way is no federal law at all.

The absence of these judges means that cases of all types cannot be resolved in a timely fashion. It means a form of lawlessness. A recent study from the Center for American Progress identified a backlog of more than 12,000 federal cases exists in Texas alone because the two current senators there, both conservative Republicans and ardent foes of the Obama Administration's legal views, have slow-walked trial judge nominations.

This is not the familiar narrative about judicial candidates where Republican intransigence in the Senate is weighed against the slow pace of White House nominations. Whereas judicial vacancies decreased both during the Clinton and George W. Bush Administrations—especially the latter—they have increased during the Obama Administration.

The reason there are so many vacancies without nominees is that certain senators are making strategic choices not to recommend federal trial-court nominees to the White House. These lawmakers are saying that they would rather have no one interpreting federal law in their states than to have more Obama-appointed judges interpreting the law. What's missing from the political equation is that it's the citizens in these states who are hurt by lengthy case delays.

This is a form of secession because it represents a hollowing out of the federal judiciary to an extent that limits federal authority over millions of citizens. It's an intentional act by the legislative branch to keep the judicial branch from effectively performing its constitutionally mandated functions. And it's a neutering of a co-equal branch achieved without a constitutional amendment or statute, or even much public debate, about expressly limiting judicial power.

* * *

There are currently 59 federal court vacancies for which there are no pending nominees. This number represents more than half the number of current vacancies in total, including those seats for which there are nominees. Thirty-nine are current vacancies, that is to say, federal judicial seats that now sit empty. The other 20 are future vacancies, seats that will soon become vacant because their current occupants have declared that they wish to retire or take senior status. 

Of the 39 current judicial vacancies without a nominee, more than 30 are in districts in states that have at least one Republican senator. Half the total—at least 19—come from states with two Republican senators. Of the 20 future vacancies without nominees, roughly 15 come from states with at least one Republican senator. And, again, roughly half (at least nine) come from states with two Republican senators.

Today in Texas, for example, there are seven vacancies without nominees on the federal-trial bench and two appellate vacancies without nominees assigned to Texas on the Fifth U.S. Circuit Court of Appeals. Texas litigants are so under-served that there are today in Texas and the Fifth Circuit seven "judicial emergencies" cited by the Administrative Office of the U.S. Courts. This sorry state of affairs evidently is okay with Senators John Cornyn and Ted Cruz.

It also sucks to be a federal litigant in Kentucky, a relatively smaller state where there are currently four federal-trial vacancies for which there are no nominees. One of these districts, vacant now for more than two years, has been deemed another one of those "judicial emergency" districts because of dire case delays. Senators Mitch McConnell and Rand Paul, both Republicans, appear to be in no rush to come to the aid of their fellow Kentuckians who seek relief in court. 

Perhaps the most disheartening example comes from Pennsylvania, a state with divided representation. Senators Bob Casey, the Democrat, and Pat Toomey, the Republican, work together on some nominees but somehow can't work together long enough to fill the eight federal-trial vacancies for which there are today no nominees. Ironic, isn't it, that the site of Gettysburg would so long countenance such a pervasive vacuum of federal authority?

Presented by

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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