Ed Whelan’s Misplaced Blame for Judicial Emergencies without Nominees

Republicans largely to blame for the very vacancies he cites

The New York Times reports that President Obama soon will nominate three people to fill the remaining vacancies on the United States Court of Appeals for the District of Columbia Circuit.  Republicans know full well they can’t credibly argue that all three nominees are unqualified – so they’ve tried all sorts of diversions.

Ed Whelan

The latest comes from National Review commentator Ed Whelan.  A column today includes a series of misleading statements about the President’s record on filling vacancies where the caseload backlog is most severe.  Such vacancies have been designated  “judicial emergencies” by the Administrative Office of the U.S. Courts. 

Whelan writes:

"If the White House were seriously interested in relieving the judicial workload, it would presumably be giving high priority to the “judicial emergencies” identified by the Administrative Office of the U.S. Courts. . . . [I]t’s striking that of those 32 judicial emergencies, the White House has made nominations to only eight of those seats, and four of those eight nominations were made just this month. Of the remaining 24 judicial emergencies for which the White House has made no nomination, vacancies have existed for periods as long as:  3,071 days, 2,706 days, 1,641 days, 1,590 days, 1,570 days, 1,238 days, 1,225 days, 939 days, 877 days, 728 days, 688 days, 606 days, 604 days"

What Mr. Whelan failed to mention is that of the 24 vacancies without nominees, 18 are in states where Republican senators have delayed the process, often for years.  Indeed, all but two of the vacancies for which he lists the number of days pending are in states with at least one Republican senator.  If Mr. Whelan is really interested in, as he puts it, “relieving the judicial workload,” he should focus his ire on his Republican Senate allies from Texas, Wisconsin, Arizona, Georgia, and Kansas, who have done their best to keep seats unfilled, even when it harms their constituents’ access to justice.

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For further reference, here’s a list of those 24 judicial emergency seats without nominees, culled from our regularly-updated Judicial Vacancies Without Nominees factsheet.  (States with two Republican senators are highlighted in red, states with split delegations are highlighted in purple, states with two Democratic senators are highlighted in blue, and vacancies that either lack Senators or where other conflicts are causing delay are highlighted in green.)

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