While all eyes are currently on a vacancy at the Supreme Court, we should not overlook circuit-level vacancies. Not including senior judges, the Sixth Circuit has positions for 16 judges, but with one vacancy, only has 15 active judges. The vacancy, created when Judge Martin retired on August 16, 2013, has existed on the court for two and a half years. This is especially noteworthy because the United States Courts website lists the vacancy as a “judicial emergency.” To constitute a judicial emergency, a vacancy must exist in a circuit where there are approximately 700 filings per judicial panel per year, or where a vacancy has existed in a circuit for more than 18 months and there are between 500 and 700 filings per judicial panel per year. The Sixth Circuit has approximately 550 filings per judicial panel.
In light of the Sixth Circuit’s long standing vacancy, we took a look the statistics on the average length of a circuit court vacancy across all circuits. For purposes of our research, the length of a vacancy stretches from the day that the seat was vacated to the date that the Senate confirmed the nomination for the seat. It should also be noted that we collected data beginning in February of 2005, the beginning of the 109th session of Congress, and have collected it through January 2016 – halfway through the 114th session of Congress. In that time, the Senate confirmed 80 circuit court judges. Our research indicated that, across all circuits, the average length of a circuit court vacancy was just over 935 days, or about two and a half years.
Focusing on each circuit court individually, the duration of average vacancies varied significantly. The circuit and that average vacancies are as follows:
First Circuit: 649 days (1 year 9 months)
Second Circuit: 398 days (1 year 1 month)
Third Circuit: 742 days (2 years)
Fourth Circuit: 1683 days (4 years 7 months)
Fifth Circuit: 938 days (2 years 6 months)
Sixth Circuit: 1658 days (4 years 6 months)
Seventh Circuit: 222 days (7 months)
Eighth Circuit: 41 days (1 month)
Ninth Circuit: 1023 days (2 years 9 months)
Tenth Circuit: 516 days (1 year 5 months)
Eleventh Circuit: 628 days (1 year 8 months)
DC Circuit: 1600 days (4 years 5 months)
Federal Circuit: 370 days (1 year)
It is important to note that the circuits with the shortest average vacancy time, the Seventh and the Eight Circuit, both only had two vacancies during the period of time for which data was collected. Additionally, both vacancies from both courts were caused by seniority, meaning that the vacancy was expected and a nomination could be selected prior to the vacancy even being created. Comparatively, the Fourth Circuit and the Sixth Circuit, the circuits with the longest average vacancy period, had 8 vacancies filled during the period of time for which data was collected.
These statistics illustrate how lengthy the nomination and confirmation process has become (perhaps indicative of partisan battling between Congress and the President). Even though these courts hear thousands of cases every year, there does not seem to be tremendous urgency to fill the vacancies created by a judge’s departure from the bench. We will continue to monitor any news of a potential nominee for the Sixth Circuit, but a safe bet would be to expect that nomination to be made by the next administration.