Justice denied when judges refused a vote

By Michele L. Jawando

If an individual were notified that his or her "day in court" would potentially come years after filing a claim, would it be worth filing a federal lawsuit in the first place?

Or if a business were told that it would have to wait more than three years for a resolution to a claim, would that change the firm's analysis of whether it was worth bringing the claim at all?

Those are the types of considerations that individuals and businesses must weigh because our nation has an access-to-justice issue in its third and arguably most important branch of government. And for many Americans, this lack of access can literally mean life or death or the survival or destruction of a business.

Today, there are more than 330,000 such cases pending in the federal courts, nearly a 20 percent increase since 2004. One of the main reasons for this backlog in cases is that judges are overburdened in courts where there are vacant judicial seats. In other words, there simply aren't enough judges to hear cases.

Across the country, due to politicized efforts to thwart the confirmation of qualified judges, we are in the midst of the worst federal court vacancy crisis since 1953.

One of the most important duties of the U.S. Senate is to confirm federal judicial nominees, yet that body has confirmed only seven federal judges since the beginning of this year - less than one confirmation per month.

Compare the current obstruction with President George W. Bush's final two years in office, when his judicial nominees were considered by a Democratic Senate. Within three months, the Senate confirmed 15 new judges.

Pennsylvania - one of the states with the most vacancies on the bench due to Senate obstruction and an overly politicized judicial confirmation process - provides a key example of the impact of the crisis facing the nation's judiciary.

Across the commonwealth, critical cases are languishing in district courts as overworked judges' caseloads pile up. It takes more than a year - around twice the national average - to try a federal felony case in the Keystone State. And while Pennsylvania's U.S. senators - Republican Pat Toomey and Democrat Bob Casey Jr. - have nominated judges for five of seven total vacancies in the commonwealth, the state, along with New York, remains second only to Texas in the number of federal judgeship vacancies.

The reason for these confirmation delays in the current Senate is not disagreement about which judges should be brought up for a vote. There are 10 pending judicial nominees who have already cleared one major hurdle: They were voted out of the Senate Judiciary Committee with bipartisan support. The reason, instead, is simple obstruction.

In the meantime, important cases pile up on the dockets of those very courts, and judges currently on the bench are unable to keep up with the load. As a result, Pennsylvanians are being denied timely access to a judicial system that is usually their last resort for critical issues such as citizenship status, access to health care, environmental pollution, employment disputes, and basic civil rights. This is by no means what the founders envisioned for our nation's justice system.

There is no better symbol of the current judicial confirmation obstruction than Judge Luis Felipe Restrepo's nomination to the U.S. Court of Appeals for the Third Circuit in Pennsylvania.

Restrepo is eminently qualified for the position. He was unanimously confirmed for a district court seat two years ago by the Senate, including the support of both senators from Pennsylvania. If confirmed, he would be the first Hispanic judge from Pennsylvania to serve on the Third Circuit court.

President Obama nominated Restrepo to the court more than a year ago. And even though the Judiciary Committee voted unanimously to confirm Restrepo, he is still awaiting a vote in the full Senate.

Restrepo is just one example of the cynical strategy being employed against judicial nominees: obstruct at all costs, even if the result is a lack of access to the justice system for the American people.

With Pennsylvanians - and others across the nation - facing the blowback of this across-the-board judicial obstruction, it's time for Senate leaders to do what they were elected to do and what the framers of the Constitution intended them to do: protect Americans' access to justice. The Senate should make it a priority to vote on these qualified judicial candidates.

Michele L. Jawando is the vice president for legal progress at the Center for American Progress. @michelejawando