Vacancies on Article III District and Circuit Courts, 1977-2011: Data, Causes, and Implications

Denis Steven Rutkus
Specialist on the Federal Judiciary

Susan Navarro Smelcer
Analyst on the Federal Judiciary

During the 111th Congress, lower court nominations and vacancies in the federal courts frequently were a subject of partisan debate. The Senate appeared divided along party lines over the degree of urgency to assign to rising judicial vacancy rates. Democrats stressed the need to fill vacant judgeships as promptly as possible, while Republicans emphasized the importance of deliberately reviewing the qualifications of judicial nominees before voting on whether to confirm. An assertion of some Senate Democrats, one which Senate Republicans declined to make, was that the number or level of judicial vacancies was “historically high.”

To provide Congress with a fuller context for further discussion of judicial vacancies, this report examines the vacancy rates that existed in the U.S. district and circuit courts during the 111th Congress relative to earlier time periods. The report also provides an overview and analysis of fluctuations that have occurred in daily judicial vacancy rates, from January 1, 1977 (shortly before the start of the presidency of Jimmy Carter) through January 2011 (the first month of the 112th Congress). For this 34-year period, the report identifies when judicial vacancy rates reached relatively high levels, the apparent causes of these rate increases, and how quickly, as well as under what circumstances, the rates were reduced. The report deals primarily with vacancy rates which account only for vacancies created by judicial departures and not rates that also account for vacancies created by the authorization of new judgeships. (The report regards a vacancy rate that accounts only for judicial departures—referred to as the “effective vacancy rate”—as a more accurate gauge of workload pressures felt by the courts, and a more meaningful measure for comparing vacancy rates across time, than a rate which also accounts for large numbers of new, and initially unfilled, judgeships authorized at different points during the 1977-2011 period.)

For purposes of this report, an effective daily vacancy rate in the U.S. district or circuit courts was regarded as “historically high” if it was greater than 90% of all daily vacancy rates during the 1977-2011 period. In the district courts, this threshold vacancy rate was 10.6%; in the circuit courts, 13.4%. Throughout most of the 111th Congress, the effective vacancy rate in the district courts was well above the historically high benchmark of 10.6%, reaching as high as 13.6% near the end of the Congress. The circuit court vacancy rate during the 111th Congress, although relatively high compared with other rates during the 1977-2011 period, was not historically high according to the standard applied in this report.

Effective daily vacancy rates in the district courts reached historically high levels—at or above 10.6%—in 1992-1994, 1997, and 2009-January 31, 2011 (the end of the time period examined). Two primary factors contributed to the heightened rates—a relatively slow pace of presidential nominations and delays by the Senate in confirming nominations. Vacancy rates in the circuit courts reached or exceeded the 90th percentile benchmark of 13.4% in 1997, 1999-2000, and 2000-2003, with Senate delays in confirming nominations a primary contributing factor.

Future strategies for filling vacancies more quickly and averting high vacancy rates include possible options for all three branches of government. The judiciary might consider instituting regular situation reports on the workload problems of courts particularly hard hit by judicial vacancies. Every President ideally would make the selection of judicial nominees a priority at the start of an Administration and maintain this momentum throughout his or her presidency. The Senate Judiciary Committee and the full Senate might more demonstrably treat as an ongoing and bipartisan policy priority, the filling of judicial vacancies, particularly longstanding vacancies designated to be judicial emergencies.


Date of Report: July 28, 2011
Number of Pages: 54
Order Number: R41942
Price: $29.95

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