Writing in Salon, Joe Pace argues there is exists a judicial vacancy crisis:
At present, 104 of the 876 federal judgeships -- almost 1 in 8 -- lie vacant. Some openings have persisted for so long and some caseloads have become so unmanageable that the Administrative Office of the U.S. Courts has declared 49 "judicial emergencies." In districts once known as "rocket dockets," civil litigants can expect to wait two to three years before they get a trial. According to Carolyn Lamm, the president of the American Bar Association, the problem is "fast approaching crisis proportion."
It would take an extraordinary amount of naïveté to deny the sad but true fact that there are too many judicial vacancies. The size of the problem cannot be denied, but there are some real disagreements about its source. One of these is quite simply that life on the bench is not as attractive as it formerly was. There are many more judges who are on the bench, so that the status value of serving on any of the lower courts is necessarily lower than it once was. The problem is compounded by the crushing nature of the workload, including a huge dose of habeas and other criminal type cases on the docket. Then there is a real issue of getting qualified applicants to endure the immense level of formality needed to get a nomination for a judgeship, including endless disclosure and interview requirements. And last the pay levels are sufficiently low that many qualified applicants are not prepared to go through the process. So there is constriction on the supply side.
Matters are only worse on the other side, given that any judicial nominee with intellectual distinction is fair game for all sorts of attacks. The fault here is bipartisan because each party when out of power will use blocking tactics. This pattern was observed when Republicans opposed Clinton nominees, including Elena Kagan when her name was floated as Circuit Court nominee. And this trend continued throughout both the Bush and Obama administrations.
The problem is simple: Neither side believes that if it backs off today, the other side will reciprocate when the tables are turned. The only short term solution is to divide the power in both Republican and Democratic administrations so that the minority party gets some portion of the nominations. That is very hard to implement, so that I see the impasse moving forward into the future. A smaller government might reduce these pressures, but not so long as the either party has ambitions to grow the size of the nation. This is but one more instance of a set of national institutions falling apart at the seams.