A Pattern Is Forming in How Federal Court Vacancies Are Being Left Open

A regional pattern is forming in the federal court vacancy data this spring that practitioners following the confirmations calendar describe as more informative than the headline numbers. Some circuits are seeing their seats filled at a steady cadence. Others have stalled. The geography of where the delays are clustering says, by the reading of several practitioners, a great deal about the deals being negotiated in other corners of the political calendar.

Where the delays are concentrated

The circuits that have moved fastest are, with a few exceptions, the ones where the home-state senators have reached the kind of working arrangement with the administration that allows nominations to advance through the standard process. The circuits that have stalled are the ones where the working arrangement has broken down, in most cases over disputes that are formally about the nominations themselves but that practitioners describe as proxies for larger negotiations.

The vacancies that remain open in the stalled circuits create the kind of operational burden on the sitting judges that, after a sustained period, begins to affect docket times and the quality of decision-making. The longer those vacancies persist, the more pressure builds for some kind of arrangement that returns the confirmations process to a workable cadence.

What the next several months will reveal

Observers who follow the confirmations process said the pattern is likely to clarify in the next several months as the broader political calendar enters its more compressed phase. If the working arrangements in the slower circuits are going to be restored, the pattern of the past several cycles suggests they will be restored within a window driven by the political calendar rather than by anything inside the confirmations process itself.

The vacancy data, for now, is the visible footprint of negotiations that are mostly happening out of public view. The pattern in the data is the part of those negotiations that observers can actually see.

Related reading: The Quiet Bipartisan Coalition Already Forming Around the Next Court Seat and Sixty Federal Judgeships Sit Empty. Several Courts Are Now Officially in Crisis..