Perl: Can new judicial emergency in Colorado spur action on stalled nomination process?

Author: Peg Perl - April 27, 2016 - Updated: April 27, 2016

Peg Perl
Peg Perl

Last week, after just a single day of court operations with six active judges and an empty judgeship, Colorado’s federal trial court caseload rose to a staggering 631 cases per judgeship. This prompted the nonpartisan Administrative Office of the United States Courts to declare the vacant seat on the U.S. District Court for Colorado a “judicial emergency” — one of only 34 in the nation. A technical re-calculation of the formula by the office dropped Colorado and five other federal judicial vacancies off the list this week, but the reprieve is temporary, at best. Caseload per judge will continue to rise and the calculations are done weekly.

Perhaps we shouldn’t be surprised. Colorado has been limping along with only seven judges since 1984, despite a population explosion and increased federal government offices moving to Colorado as a regional hub for activity. Chief District Court Judge Marcia Krieger warned us two years ago that “the storm clouds are on the horizon” with regard to large caseloads creating delays for Colorado citizens and businesses seeking to resolve disputes in federal court.

U.S. District Court Judge Robert E. Blackburn gave a year’s notice that he would be taking senior status on April 12, 2016, in order to give time to find, nominate and confirm a successor before his seat went vacant. Colorado Sens. Michael Bennet, a Democrat, and Cory Gardner, a Republican, both moved to create screening committees and ended up sending a common list of three qualified names to the White House in January for possible nomination. But the process has generally been much slower than the last time a judge took senior status on Colorado’s trial court in 2012. That time, the president nominated a replacement during the year-notice period and U.S. District Judge Raymond Moore was confirmed within two months of the seat becoming vacant.

Today Colorado has an empty seat and a judicial emergency, but no nominee. It is unclear whether Senate leadership’s hostility to holding hearings and a confirmation vote on the U.S. Supreme Court nominee Merrick Garland is delaying the nomination from the White House. Not that the Senate was acting swiftly before Justice Antonin Scalia’s passing in February — only six judicial nominees of any level court have been confirmed in 2016 (a record that takes us back to “I LIKE IKE” days). There are more than 90 Circuit and District Court vacancies across the nation and citizens trying to get their day in court can’t afford to wait in line indefinitely for the political games around the Supreme Court nominee to end.

Hopefully, this judicial emergency designation will spur our Colorado delegation to action. Both Sens. Gardner and Bennet and all seven members of Colorado’s congressional delegation have put aside politics to jointly support legislation last year to add two new judgeships for a total of nine on this trial court. They should similarly work together now to pressure the president to nominate a replacement and to push the Senate to hold a confirmation hearing and a vote. Sen. Gardner is currently siding with those senators refusing to consider the Merrick nomination. Despite that, the entire delegation should stand up for Coloradans and work to end the gridlock in Washington over judicial nominations.

Peg Perl

Peg Perl

Peg Perl is senior counsel for Colorado Ethics Watch and a member of the Courts Matter Colorado coalition, organizations united to educate the public about the importance of federal courts and to advocate for a fair, diverse, and fully staffed federal judiciary.