Federal Courts, Empty Benches: The Wednesday Vacancy Count 6/27/2012

June 27, 2012

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. District courts is set at Blue. There was one new confirmation this week, leaving the final tally at 71 vacancies or approximately 8.2% of the total Article III posts currently 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	6.7% or 12 vacancies
District Courts	8.7% or 59 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. This also includes a shared post between the two Missouri districts and counts it as two posts with separate vacancies.

Weekly map

The new weekly map feature will be updated every week and posted here and on the vacancy warning level analysis page.

Thurmond Rule goes into effect for circuit appointees

Senate Minority Leader Mitch McConnell announced last week that the Republicans in the Senate plan to put into effect the "Thurmond Rule" thereby blocking nomination votes to all appointees to the appellate courts. McConnell officially invoked the rule on Wednesday night, June 13 and is expected to have the unified support of the Republicans in the Senate. The "Thurmond Rule" also known as the "Thurmond-Leahy Rule" is an unofficial Senate rule that holds that the opposition party to the White House can block the nomination of circuit court judges up to 6 months prior to a presidential election. It was first invoked by Former Senator Strom Thurmond to block the Lyndon Johnson's appointment of Justice Abe Fortas to Chief Justice of the United States in 1968. It was later invoked by Senator Patrick Leahy to block appointees during the last months of the Bush Administration. While the goal of the rule is to prevent a lame duck president from packing the courts in his closing months, the rule is predominantly partisan motivated and either lauded or praised by the same Senators depending on the political situation. Leahy invoked the rule to block Bush appointees, however criticized the rule in 2000 under Bill Clinton and again in 2012 under Barack Obama. In addition, Republican Senator Orrin Hatch dismissed the rule in 2004, stating

“

Strom Thurmond unilaterally on his own ... when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me.

”

However, Hatch felt that McConnell's use of the "Thurmond Rule" to block Obama's appointees was only a matter of time, telling the press, "it’s always been used."

While the Republicans argue that both sides of the aisle have employed this technique, Democrat leadership, including Senator Leahy himself, has criticized the move as premature and a further hamper to an already struggling court system. Senator Leahy pointed out that during Bush's two terms in office, the Senate continued to confirm nominees from June to November, confirming 25 in that period in 2004 and 22 in 2008. In addition the current 72 vacancies (74 including other Article III seats with the Court of International Trade) is much higher now than it was in 2004 or 2008. However, Republicans are quick to point out that they have confirmed more circuit court nominations in this election year than the Senate had in 2008 (5 to 4 respectively).

With the "Thurmond Rule" in effect, barring a change of plans, the current 12 vacancies at the Appellate court level will remain until a new president is elected. Those vacancies include (names in parenthesis have been returned to president):

Court	Vacating Judge	Date Vacated	Pending Appointee	Date originally appointed
First Circuit	Kermit Lipez	201112/31/2011	William Kayatta	20121/23/2012
Third Circuit	Maryanne Barry	20116/30/2011	Patty Shwartz	201110/5/2011
Fifth Circuit	Fortunato Benavides	20122/3/2012		1900
Seventh Circuit	Terence Evans	20101/7/2010	(Victoria F. Nourse)	20127/14/2010
Ninth Circuit	Stephen Trott	200412/31/2004	(Goodwin Liu)	2010(2/24/2010)
Tenth Circuit	Deanell Tacha	20111/27/2011		1900
Tenth Circuit	Robert Henry	20106/30/2010	Robert Bacharach	20121/23/2012
Eleventh Circuit	Stanley Birch	20108/29/2010	Jill Pryor	20122/16/2012
DC Circuit	Douglas Ginsburg	201110/14/2011		1900
DC Circuit	John G. Roberts	20059/29/2005	Caitlin Halligan	20109/29/2010
DC Circuit	Arthur Randolph	200811/01/2008	Srikanth Srinivasan	20126/11/2012
Federal Circuit	Paul Michel	20105/31/2010	Richard Gary Taranto (Edward C. DuMont)	201111/10/2011(12/22/2010)

New confirmations

Southern District of Florida

On June 26, 2012, the United States Senate confirmed Robin Rosenbaum to the United States District Court for the Southern District of Florida with vote of 92-3. Rosenbaum was originally appointed on November 30, 2011, by Barack Obama to the seat vacated by Alan Gold. At the time of appointment, Rosenbaum was a federal magistrate judge for the United States District Court for the Southern District of Florida. She was rated Unanimously Well Qualified by the American Bar Association. She had a hearing before the Senate Judiciary Committee on February 29, 2012 and you can find her Committee Questionnaire available here and her Questions for the Record available here. The confirmation fills one of two vacancies on the court of eighteen, lowering the vacancy warning level from Yellow to Blue.

New vacancies

There were no new vacancies this past week.

New nominations

On June 25, 2012, President Barack Obama nominated three individuals to posts on the United States District Courts. Obama commented on the nomination, stating "“I am pleased to nominate these distinguished individuals to serve on the United States District Court bench. I am confident they will serve the American people with integrity and a steadfast commitment to justice.”

Middle District of Florida

Obama nominated Sheri Chappell to the United States District Court for the Middle District of Florida to fill the vacancy left by Gregory Presnell. Sheri Chappell currently serves as a United States Magistrate Judge for the Middle District of Florida. Chappell attended the University of Wisconsin-Madison, earning her B.A. in 1984. She went on to earn her J.D. in 1987 Nova Southeastern University Law School. The nomination would fill one of two vacancies on the court of fifteen. With one other pending appointment, the vacancy warning level of the court is set at Yellow.

Southern District of New York

Obama nominated Katherine Failla to the United States District Court for the Southern District of New York to fill the vacancy left by Denise Cote. Katherine Failla currently serves as the Assistant United States Attorney in the Southern District of New York. Failla earned her B.A. summa cum laude in 1990 from the College of William and Mary. She went on the earn her J.D. graduating cum laude three years later from Harvard Law School. If confirmed, the appointment would fill one of six vacancies on the court of twenty-eight. With one other pending appointment, the vacancy warning level of the court is set at Yellow.

Eastern District of California

Obama nominated Troy L. Nunley to the United States District Court for the Eastern District of California to fill the vacancy left by Garland Burrell. Troy L. Nunley currently serves as a judge on the Sacramento County Superior Court . Nunley earned a B.A. in 1986 from St. Mary's College in California and went on to earn his J.D. in 1990 from University of California, Hastings College of the Law. The court's six seats are currently full leaving the vacancy warning level at Green. However, Garland Burrell is slated to assume senior status on July 4, 2012.

See also

• United States federal courts