Federal Courts, Empty Benches: The Wednesday Vacancy Count 5/18/2011

May 18, 2011

By Joshua Meyer-Gutbrod

For a District by District break down, see: Federal Court Vacancy Warning System

The current vacancy warning level for the U.S. Federal courts is set at Blue and was lowered from its previous level of Yellow due to three additional confirmations at the district court level. Approximately 9.8% of the total Article III posts are currently left unfilled. The vacancy information for the various court levels is as follows:

Key:
(Percentage of seats vacant.)
0%	1%-9%
10%-24%	25%-40%
More than 40%

Supreme Court	0% or no vacancies
Appeals Courts	9% or 16 vacancies
District Courts	10.1% or 69 vacancies

There are currently 9 Supreme Court posts, 179 appellate court posts and 680 district court posts for a total of 868 Article III judges. This count includes four temporary posts, one each in the Northern District of Alabama, District of Arizona, Southern District of Florida and the Central District of California. There are currently 49 pending appointments in the Senate leaving 44% of the vacant posts without an appointment. So far this year there have been 24 confirmations.

New confirmations

Second Circuit

Susan L. Carney was confirmed to the United States Court of Appeals for the 2nd Circuit by the U.S. Senate on May 17, 2011 with a vote of 71-28. Carney's nomination was originally submitted by President Obama May 20, 2010 and was only returned to the president and later resubmitted due to the end of the last legislature. Carney received both her bachelor's and her J.D. from Harvard University. The confirmation fills one of the two vacancies on the appellate court, lowering its vacancy warning level from Yellow to Blue. The post has been vacant since Barrington Parker assumed senior status on October 10, 2009.

Western District of Virginia

Michael Urbanski was confirmed to the Western District of Virginia on May 12, 2011 by a Senate vote of 94-0. Urbanski's nomination was originally submitted on December 1, 2010 and was returned to the President and resubmitted at the start of the new legislative session. He is currently serving as a magistrate judge for the district. The confirmation lowers the vacancy warning level from Yellow to Green, filling the only vacancy on the court.

Eastern District of Virginia

Arenda L. Wright Allen was confirmed to the Eastern District of Virginia on May 11, 2011 by a Senate vote of 96-0. Allen's nomination was originally submitted on December 1, 2010 and was returned to the President and resubmitted at the start of the new legislative session. Allen is currently the Supervisory Assistant Federal Public Defender in the Federal Public Defender’s Office for the Eastern District of Virginia. The confirmation lowers the vacancy warning level of the district from Blue to Green, filling the only vacancy on the court.

New nominations

President Obama nominated three new judges to district court on May 11, 2011.

District of Delaware

President Obama nominated Richard G. Andrews to the United States District Court for the District of Delaware to replace Joseph Farnan. Andrews is currently the State Prosecutor for Delaware. He earned his bachelor's at Haverford College and his J.D. from the University of California at Berkeley Boalt Hall School of Law.

Southern District of California

President Obama nominated Cathy Bencivengo to the United States District Court for the Southern District of California to replace Jeffrey Miller. Bencivengo is currently federal magistrate judge for the district court. She earned her bachelor's at Rutgers University and her J.D. from the University of Michigan School of Law.

Northern District of Ohio

President Obama nominated Jeffrey J. Helmick to the United States District Court for the Northern District of Ohio to replace James G. Carr. Helmick is currently a private practice attorney in Ohio. He earned his bachelor's at University of Michigan and her J.D. from the Ohio State University Moritz College of Law.

Struggling districts

With the federal vacancy warning level dropping to blue for the first time since we established this tracking system, it is shocking to know that there are still two districts in the red and five districts in the Orange. We will take this opportunity to again highlight the two most struggling districts by percentage, with 50% of their available posts vacant. The two districts are the Western District of Wisconsin and Middle District of Pennsylvania.

Western District of Wisconsin

Despite its 50% vacancy rate, the Western District of Wisconsin is not in as bad a shape as the Middle District of Pennsylvania. However, the problem for this district lies in the fact that it only has two federal judicial posts to account for its caseload. And while one appointment would resolve this dilemma, this critical seat has been vacant for over two years. The seat opened up when John Shabaz assumed senior status on January 20, 2009. In addition, while President Obama appointed a replacement on September 30, 2009, the appointment was seen as controversial and has been unable to clear the Senate. Louis Butler's appointment has actually been returned to the President three times since the nomination was originally submitted (12/24/2009, 8/5/2010 and 12/22/2010). While receiving a rating of Unanimously Well Qualified from the American Bar Association, Butler's nomination is controversial due to Butler's political leanings and his political history in Wisconsin. Butler was the only Judge of the Wisconsin Supreme Court who was appointed to the post. He also lost two elections for the post, one prior to appointment in 2000 and one after his appointment in 2008. He was the first Wisconsin Supreme Court justice in 41 years to not be re-elected. Currently Butler's nomination is awaiting action by the Senate Judiciary Committee.

Middle District of Pennsylvania

The other severely struggling district based on vacancy percentage is the Middle District of Pennsylvania. The district has jurisdiction over 33 counties in Pennsylvania with courthouses in Harrisburg, Scranton, Williamsport and Wilkes-Barre. The court has six posts and currently has only three active Article III judges. The remaining seats have been open since early 2009 with the final post opening up in early 2010. The vacancies were created on:

• January 30, 2009 - James Munley assumed senior status.
• March 31, 2009 - Richard Caputo assumed senior status.
• April 21, 2010 - Thomas Vanaskie was elevated.

In addition to the high number of vacancies, the district only has one pending appointee, Robert David Mariani, appointed 12/1/2010. While Mariani's appointment was returned to the President at the end of last year with the rest of the appointments, it was immediately resubmitted on January 5. Despite his unanimously well qualified rating from the ABA, there is remarkably little activity surrounding this applicant for a struggling district. The Senate Judiciary Committee has yet to schedule a hearing and pursue action on this appointment.

See also

• United States federal courts