With the presidential election nearly here and in the wake of Justice Ruth Bader Ginsburg’s passing, the topic of federal judicial nominations is once again in the news. The big headlines feature the pending confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court, but businesses understand that over 99% of disputes are resolved in lower federal and state courts. So, while Supreme Court confirmation battles get all the attention, it is the ongoing, increasingly intense skirmishes over confirmations of judges to the lower federal courts that can most directly impact businesses’ liability. The exact nature of those impacts, however, often goes unrecognized.
The One-Way Ratchet
Not too long ago, the Senate routinely confirmed judicial nominees without fuss or fanfare, regardless of which party held the White House or Senate. Even as recently as President Clinton’s administration, most judicial nominees were confirmed simply by unanimous consent or voice vote, with filibusters practically unheard of.
In the years since, both parties deployed new tactics to oppose and impede nominees by presidents of a different party. Filibusters became frequent. And, after the Senate changed its rules to make it easier to defeat a filibuster, Senate minorities resorted to across-the-board procedural delays and the withholding of blue slips (the unofficial endorsement of a nominee by a home-state senator) to prevent or postpone judicial confirmations. As a result of this continual escalation, the days of Senate majorities and minorities maintaining a collaborative consensus on judicial confirmations may well be over.
Impact on Courts
This trend’s most immediate impact on businesses’ liability is seen in the question of whether a jurisdiction will even have enough judges to staff the courthouse. Today, for example, of the seven judgeships in the U.S. District Court for the Western District of Washington, five (over 70%) are vacant and will almost certainly not be filled this year due to the inability of home state senators and the White House to agree on nominees, even though the Judicial Conference has identified these vacancies as “judicial emergencies” given the district’s case load. The same is true for several other jurisdictions, including the District of New Jersey, where six of 17 judgeships will remain vacant. In Colorado, it’s been 19 months since Judge Marcia Krieger took senior status, and it appears her seat — also classified as a judicial emergency — will remain unfilled for the foreseeable future.
When courts are understaffed and overburdened, business litigation is often the first category of cases to be affected. As judges prioritize criminal dockets, civil cases may be referred to already-overworked magistrates, motions to dismiss may be ignored, summary judgment motions might remain pending as trial dates approach, and trials may get triple-booked and postponed unendingly.
Sometimes such delays can be an advantage to certain business defendants. But for others — businesses attempting to close a major transaction or get ready for an IPO, for example — the uncertainty created by overburdened courts puts a huge thumb on the scale in favor of settlement.
Which jurisdictions will be the ones to languish with unfilled vacancies in the next four years will depend entirely on which party controls the White House and Senate and the relationship between the White House and a jurisdiction’s senators. Based on the last four years, having one or both home state senators from a minority party opposite the president is a tell-tale sign that vacancies may be hard to fill and business litigation may start to slow as the court becomes overwhelmed by its caseloads.
Impact on Prospective Nominees and Judges
The devolution of the Senate’s treatment of judicial nominees also impacts the kind of candidates who will be nominated for judgeships. As nominees face an increasingly hostile and uncertain confirmation process, with the prospect of having their hearing testimony go viral and their family members investigated by outside interest groups, many high-quality individuals who may have considered public service are simply deterred.
The result in some instances may be a somewhat smaller, and perhaps slightly less impressive, pool of candidates to consider for nominations. That deterrence effect is probably most pronounced for those attorneys with otherwise lucrative careers, including corporate lawyers who, with their experience representing business organizations, tend to be just the kind of people businesses prefer to have as judges overseeing their complex business cases.
For current judges, the trend of vacancies remaining unfilled due to nominations politics leads to increased caseloads. In several instances, overworked federal judges have decided to leave the bench entirely to return to the apparent greener pastures of private practice, exacerbating courts’ caseloads further — with subsequent slow-down effects on business litigation — and reducing the overall experience level of remaining judges.
Impact on the Law
With fewer incentives in place for Senate majorities and minorities to collaborate on judicial nominations, and fewer tools for Senate minorities to use to oppose nominees, parties that find themselves in control of both the White House and Senate will nominate and confirm judges that more clearly reflect the party’s favored judicial philosophy. This means that confirmed judges appointed by either party, while not necessarily pre-judging any given case, may increasingly be pre-disposed to favor certain legal positions consistent with their underlying judicial philosophy.
Just as an example, Republican-appointed judges might tend to be more skeptical of federal agencies’ power to issue broad regulations, while Democratic-appointed judges may tend to view such regulatory regimes as having firmer legal ground. Similar predispositions may be evident for a wide variety of legal issues, including many that impact business liability. Although the role of competing judicial philosophies is nothing new, the politics of judicial nominations will likely result in a judiciary with a more clearly pronounced philosophical divide.
Judicial Intelligence
With business litigation increasingly impacted by the ongoing judicial confirmation battles, businesses that develop a deeper understanding of nominations politics can tailor their litigation and dispute resolution strategies and better anticipate the direct and secondary effects of such politics. While nothing is ever certain when left in the hands of politicians, a keener awareness of the trends and possibilities in judicial nominations can help businesses prepare for any impacts that come their way.
— Mark Champoux is a partner in the Trial Group at Davis Graham & Stubbs, served for 2.5 years as the Principal Deputy Assistant Attorney General for Legal Policy at the U.S. Department of Justice.