Anyone old enough to remember Brown v. Board of Education, Roe v. Wade and Bush v. Gore knows how important the U.S. Supreme Court is. Now comes Wal-Mart v. Dukes, in which the Supreme Court will hear arguments March 29 on whether 1.6 million women who work for the giant retailer will be able to sue the company as a group for pervasive gender discrimination throughout its operations. The ability to file a class action has historically been critical to the enforcement of civil rights law, and many eyes will be focused on this important case.
It is vital to remember, however, that many other important federal cases never make it to the Supreme Court. Last year 282,307 civil and 77,287 criminal cases originated in the federal district courts, 56,790 cases were appealed to the U.S. Circuit Courts of Appeal, and about 10,000 were appealed to the Supreme Court, which typically issues opinions in only 80 to 90 cases a year. So while the Supreme Court is undoubtedly the most important court in the land, it is just a part of the extensive federal system that has an enormous impact on the quality of American justice.
And today too many Americans are finding it hard to get their day in federal court due to the slow pace at which vacancies are being filled on the federal bench. According to the Federal Bar Association’s president, Ashley L. Belleau, “The increasing number of federal judicial vacancies in the federal court system is straining the capacity of federal courts to administer justice in an adequate and timely manner.”
The nomination and confirmation of judges to lifetime appointments to handle these cases is one of the most important duties of the president and the Senate. But far from a process of careful, timely deliberation, routine judicial nominations have been tied up in partisan wrangling and delay, apparently in an effort to prevent the president from filling seats on the bench with qualified candidates who reflect his mainstream views of the law.
President Obama has been slow in making appointments — slower than his predecessors. But the primary roadblock is the Senate, where nominees languish for months and even years, stymied by anonymous objections, delayed votes, spurious inquiries and whatever other tactics opponents can muster.
One nominee was filibustered for no apparent reason — when the vote finally came, she was confirmed by a margin of 99 to 0. Another waited 236 days to be confirmed, and yet another waited 275 days for confirmation. When the votes were finally taken, those who had held up their confirmations had not a word of opposition.
The result of such machinations has been that only 40% of the president’s nominees have been confirmed as of February 2011, while in the same time frame, 77% of President George W. Bush’s nominees were confirmed. Of the 45 nominees now pending before the Senate, 29 had to be re-nominated after the last session of Congress failed to act on their nominations. The delays mean that more than a tenth of the nation’s 875 judgeships are unfilled. In many districts, senior judges (who are semi-retired, sometimes in their 80s) have been called back to hear cases, and lengthy vacancies in busy courts have led to a declaration of judicial emergencies in 40 — or more than one-third — of the empty seats.
When Betty Dukes and her fellow plaintiffs first worked up the courage a decade ago to stand up against Wal-Mart’s discriminatory treatment of them, they sought out the only forum where they could hope that their rights and those of their bosses would be given equal weight — our federal courts. The chances for justice for Americans like Betty Dukes and for everyone else depend on the ability to seek timely redress. Justice delayed is justice denied. The president and the Senate must act forthwith to fill our federal courts with judges committed to the defense of our fundamental rights and liberties. The Constitution demands no less.
Nancy K. Kaufman is chief executive officer of the National Council of Jewish Women.