Federal Courts, Empty Benches: The Wednesday Vacancy Count 4/27/2011

April 27, 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 Yellow and is unchanged from the last three weeks. Approximately 10.5% 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 17 vacancies
District Courts	10.9% or 74 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 three temporary posts, one each in the Northern District of Alabama, District of Arizona, and the Central District of California. There are currently 49 pending appointments in the Senate leaving 47% of the vacant posts without an appointment. So far this year there have been 17 confirmations.

Struggling districts

With two full weeks of inactivity by the Senate and the President with regard to judicial nominations, we now have the opportunity to highlight the two most struggling districts in the United States. Both districts' vacancy warning levels are currently set at red, each 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