On its last day of business in 2021, the Senate confirmed dozens of President Biden’s judicial nominees waiting to get to work.
Not a single one of them went to the local D.C. courts — despite the fact that the D.C. Superior Court and Court of Appeals are dealing with an unprecedented 17 judicial vacancies, roughly one-fourth of all the courts’ judicial seats.
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In response, the local courts are issuing an urgent call to action.
“The District of Columbia Courts have reached a critical state as it pertains to the vacancies on the bench,” a spokesman for both courts, Doug Buchanan, said in a lengthy statement to The Washington Post. “Those who can help must act now. It is a matter of public safety and justice.”
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To District officials, the languishing vacancies underscore that the Senate does not prioritize confirming local D.C. judges, leaving the city’s current judges overburdened with larger caseloads and, critics say, leading to delays in justice. For D.C. residents, the vacancies lead to delays in having their lawsuits litigated, their child custody challenges heard, and their defenses against criminal charges considered.
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The Senate has oversight over D.C. judicial nominations because the District is not a state; the federal government funds the D.C. court system. But once the White House sends its judicial nominees for the local D.C. courts to the Senate for consideration, they can sit for months or years without being confirmed.
“This has led to a long-standing vacancy crisis within the local D.C. Court System, regardless of which party controls the Senate, and we have now reached a point in which we find it necessary to sound the alarm,” Buchanan said.
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Eleanor Holmes Norton, the District’s nonvoting House delegate, said the Senate’s failure to prioritize filling the vacancies shows that D.C. is “at the bottom of the barrel until we get statehood.” But in the meantime, she said, she is pushing legislation intended to end the months- or years-long delays, called the D.C. Courts Vacancy Reduction Act.
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The legislation, which advanced from the House Committee on Oversight and Reform last month, would create a 30-day congressional review period for local D.C. judicial nominations. If Congress does not object to a nominee within 30 working days, the nominee would be automatically confirmed. It would similar to the mechanism by which Congress reviews D.C. legislation.
Norton (D) described the legislation — which faced Republican opposition in the committee hearing — as a win-win for both D.C. courts and for senators, easing the burden on the city’s overworked judges while easing the senators’ workload, too. Senators are often far more focused on confirming federal judges and other nominees within the president’s administration, she said.
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“This is a chronic problem,” she said. “I’ve never been able to solve it — that’s why I put in a bill. The Senate simply doesn’t pay attention to D.C. judges.”
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The bill does not yet have a Senate companion. But Sen. Thomas R. Carper (D-Del.), a close D.C. ally in the Senate and sponsor of legislation to make D.C. a state, said he would be open to Norton’s proposal, believing the status quo cannot not continue. Carper had jurisdiction over D.C. judicial nominees while he was the chairman of the Senate Homeland Security and Governmental Affairs Committee, and after advancing them to the Senate floor, he often watched them sit on the calendar unrecognized for months or years.
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“That old saying you’ve heard, ‘Justice delayed is justice denied,’ ” Carper said. “I just think it’s wrong, dead wrong. It’s an embarrassment. My colleagues should be embarrassed as well.”
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Judicial nominees for the D.C. Superior Court and the D.C. Court of Appeals are first selected by the Judicial Nomination Commission, whose members are appointed by local and federal appointed officials. The commission then sends potential nominees to the president, who sends selections to the Senate Homeland Security and Governmental Affairs Committee for consideration. Once nominees advance from committee, that’s typically when the real delays begin.
Right now, of the 62 Superior Court judicial seats, 14 are unfilled — some since 2016 — with two more vacancies expected in the coming weeks. Three out of nine Court of Appeals seats are vacant as well — one has been vacant for as long as eight years — and a fourth vacancy is expected by June.
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Buchanan described the impact in stark terms. In the Court of Appeals, the city’s highest court handling criminal, civil, family and administrative appeals, the lack of one-third of its judicial resources means that more than 200 cases are delayed on the calendar per year because only a limited number of judicial panels can be assembled. “In turn, this delay results in an aging case load, increased workloads on existing judges, and an increase on the average time on appeal,” he said.
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He noted that the D.C. Superior Court has the distinction among the nation’s trial courts of having the highest number of case filings per capita in the United States. There are more than 10,000 criminal cases pending, more than doubling last year’s case load, he noted. The coronavirus pandemic added an additional challenge; jury trials resumed in the spring after being suspended for roughly a year.
D.C. Council member Charles Allen (D-Ward 6), who chairs the council’s judiciary committee, said the vacancies cause delays in justice for perpetrators, victims and survivors, and he added that some people have been waiting for trial in the D.C. jail for a longer period of time than they would serve if they were convicted.
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“This is a massively dysfunctional part of our criminal justice system, which is already dysfunctional because of so many federally controlled elements,” Allen said. “When you add on top of it a massive case backlog in the months and years to come, it puts our entire criminal justice system at a massive disadvantage.”
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Allen stressed that the challenges created by the vacancies aren’t just limited to criminal cases; other judicial matters involving families, estates and marriages are also affected.
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Beverly L. Perry, senior adviser to Mayor Muriel E. Bowser (D), said judges have had to shuffle around their schedules to accommodate cases they wouldn’t otherwise be hearing. She said she recently learned Superior Court judges typically have 200 cases or fewer on their docket, but now have 300 to 400.
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“A criminal judge might be handling a family court calendar — this problem keeps escalating,” Perry said.
Perry applauded Norton’s legislation, noting its similarity to how local D.C. legislation can be passively approved by Congress if there is no action after 30 working days.
“It’s one of those things that should be perfunctory, it shows another reason we should be a state — and it shows how people that have disregard for our city can create a harmful outcome,” Perry added. “It exemplifies how we have no voice in the Senate at all.”
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The Senate Homeland Security and Governmental Affairs Committee scrutinized problems created by the vacancies during a recent hearing for three judicial nominees last month, and Chairman Gary Peters (D-Mich.) highlighted these problems in his opening remarks.
When Sen. James Lankford (R-Okla.) asked the three nominees what they thought the biggest problems were facing the D.C. courts, Court of Appeals nominee Loren L. AliKhan, the D.C. solicitor general, described the backlog as “the first-, second-, third- and fourth-biggest problem facing the District.”
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“If you’re seeing a five-year delay from when an appeal is filed until when an opinion comes down? That causes the public to lose confidence,” she said, “especially when we’re dealing with cases involving child custody, abuse and neglect, criminal cases. There needs to be swift justice.”
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Senators on both sides of the aisle appeared to agree that D.C.’s vacancy problem was urgent. But when Peters tried to bring the nominees to the Senate floor days later, seeking to confirm them through unanimous consent, Sen. Rick Scott (R-Fla.) blocked him.
“I have absolutely no faith that Joe Biden’s radical far-left nominees will uphold the rule of law,” Scott said.
His objection meant that the judicial nominees went back to live on the Senate’s executive calendar for an unknown period of time, awaiting a vote that would not come for the rest of this year. It’s unclear when D.C. judicial nominees may come up for a vote again; a spokesman for Senate Majority Leader Charles E. Schumer (D-N.Y.) did not immediately respond to questions.
In closing out his statement, Buchanan urged the Senate to act “immediately” to confirm the pending D.C. judicial nominees upon returning to Washington in the new year.
“Please,” he wrote. “The time to act is now.”