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Are Democrats Causing Delays in Court?

Contrary to a pro-Bush TV ad, Republicans share the blame for "empty courtrooms," and delays are shorter now than they were before Bush.

May 6, 2005

Modified: May 6, 2005

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Summary

 

A multimillion-dollar ad campaign blames Democrats for the fact that "courtrooms sit empty." In fact, there are now half as many judicial vacancies as when Bush took office. And of the 46 federal judgeships that remain vacant, Bush has named only 16 replacements.

The ad also says cases are being delayed in federal courts for "thousands of Americans." Actually, official statistics show cases typically being decided more quickly now than they were in 1999, when it was Republicans opposing Clinton's judicial nominees.

Analysis

 

At a May 2 press conference, Progress for America President Brian McCabe announced his group will spend $3.3 million to air TV and radio ads designed to ensure that the President's "well-qualified nominees receive an up-or-down vote on the floor of the Senate." 

 Progress for America TV Ad "Fair"

Announcer: If you think judges should be fair and well-qualified, look at these women.

(Image on screen: photographs of Priscilla Owen and Janice Rogers Brown).

Janice Brown is the daughter of sharecroppers. She put herself through school and rose to become the first African-American woman on the California Supreme Court. Brown has won praise from Republicans and Democrats for being fair and honest. Other judges call Janice Brown "superb" and "extremely intelligent." Priscilla Owen was twice selected to serve on the Texas Supreme Court. Endorsed by major newspapers, Owen got strong bipartisan support and the ABA's highest rating. President Bush nominated them to be federal judges, some as long as four years ago. But Senate Democrats have abused the rules and refused to allow a vote. So courtrooms sit empty, while thousands of Americans have their cases delayed. The job of a US Senator is to vote. Urge your senators to vote, up or down. Enough is enough.

The 60-second TV and radio spots will run in the home states of senators expected to be swing votes on the "nuclear option," the procedural maneuver used to amend Senate rules and require only a simple majority, rather than 60 votes, to break any filibuster. The ads will air in Alaska, Arkansas, Maine, Nebraska, North Dakota, and Rhode Island until May 9, when they will be replaced with national cable and radio spots.

At one point the ad states that Senate Democrats have "abused the rules" and refused to allow a vote on some of Bush's nominees. And then it says, "So courtrooms sit empty, while thousands of Americans have their cases delayed."

We wondered about that -- and checked the record. Here's what we found.

Courtrooms Sitting Empty

According to the Administrative Office of the U.S. Courts , there were 46 vacant federal judgeships as of May 4. But that is fewer than half as many as in February 2001, the month after Bush took office, when there were 97 "empty courtrooms."

And most of the vacancies that remain aren't  due to Senate delays. They are vacant because Bush has not yet named anyone to fill them. He's nominated persons to fill barely one-third of the vacancies, including 10 of 16 vacancies in the appeals courts, 6 of 29 vacancies in the federal district courts, and nobody to fill the single vacancy at the US Court of International Trade.

In the President's defense, he has filled lots of other vacant courtrooms – 205 currently active federal judges are Bush appointees, all confirmed by the Senate. But that's a fact cited most often by Democrats, as evidence that they aren't being unreasonable.

Furthermore, there were lots more vacant courtrooms when Republicans resisted confirming some of Bill Clinton's nominees. In December of 1999, for example, there were 67 vacancies in the federal judiciary – nearly 46 percent more than at present. And Clinton had nominations pending for just over half of them. By the time Bush took office, as mentioned earlier, the number of vacancies had grown even larger.

Cases Delayed?

The ad goes on to say "thousands of Americans have their cases delayed" because Democrats are blocking confirmations. There's no question that many cases drag on for years. But most cases are being resolved less slowly now than they were in 1999, as shown in these two graphs.

 

In federal District Courts, the median time taken to resolve a civil case was 10.5 months in 1999, meaning that half of all cases took longer, half took less. But by last year that time had grown shorter, falling to 8.5 months. (Criminal cases are resolved more speedily, with a median time of 6.9 months in 2004 -- about two weeks longer than the median time five years earlier.)

The picture is similar in the appeals courts, where the median time taken to resolve a case used to be 12 months and had fallen to 10.5 months as of last year.

Who's to Blame in the 6th Circuit?

Asked to support the ad's claim that Democrats are responsible for delays, Progress for America cited the situation in the 6th Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio and Tennessee. And indeed, that court's median time to dispose of a case was 16.8 months in 2004, the worst record of any of the 12 appeals courts. To be sure, there are currently four vacancies on that court all considered "judicial emergencies" based on its volume of cases, according to the Administrative Office of the US Courts. Bush has nominated judges to fill all of them.

However, a closer look shows that both parties share responsibility for the 6th Circuit’s awful record. Three of those vacancies opened up during the Clinton administration, one of them as far back as 1995. But former Republican Sen. Spencer Abraham, now Bush's energy secretary, blocked two of Clinton' s nominees to that court by the simple expedient of refusing to allow hearings on them. And that was despite the fact that even then the 6th Circuit’s delays had been the worst in the country since 1998.

There's no question that fewer courtrooms would be vacant if Senate Democrats approved more of Bush's nominees. And it stands to reason that cases might be decided with fewer delays. But the fact is – contrary to the impression this ad strives to create – there are fewer vacant courtrooms now than there were before, and cases are being resolved more quickly.

Sources

 

"Federal Court Management Statistics, 2004," Administrative Office of the US Courts.

"Federal Judicial Vacancies Archive," Administrative Office of the US Courts, Accessed 5 May 2005.