Detention: Law of

Judicial Vacancies and Guantanamo

By Larkin Reynolds
Wednesday, March 2, 2011, 4:32 PM

At Monday's Brookings event on judicial nominations, Chief Judge Royce Lamberth of the D.C. District Court offered a few thoughts on the impact of judicial vacancies on the D.C. District Court--the court that some, including Jack and Ben, have argued is the country's de facto national security court.  Some of Judge Lamberth's brief comments on the topic are below:

There are currently a large number of vacancies in the federal courts and many of those are characterized as judicial emergencies based on the size of the caseload and the amount of the time the seat has been empty.  Shorthanded courts cannot function properly, and many litigants who face lengthy delays and crowded dockets are ultimately denied the justice they seek.  The D.C. Circuit currently has two vacancies, including the seat vacated five years ago by Chief Justice Roberts.  The District Court has had four vacancies:  Judge Kessler’s slot from 2007; Judge Hogan from 2008; Judge Robertson, who took senior status in 2008 and then later resigned; and Judge Friedman, who took senior status in 2009.

Our court is swamped with Guantanamo cases which have been too long delayed and which we are currently trying to expedite but the result is we expect to try very few civil cases this spring or summer and only criminal case where the Speedy Trial Act dictates trial now.  We need new judges just as many other courts do.

It took the administration 18 months to get our four nominees in place.  I sent a letter in November to Senators Reid, McConnell, Lahey, and Sessions talking about the dire needs of my court.  And I am pleased to report that two of our nominees were confirmed Christmas week.  Two more were scheduled for a vote on an agreement made February 2nd and we thought the agreement was they would be voted on before the President’s Day recess.  Unfortunately, we don’t have a senator in D.C.  The senator from Georgia was able to get two Georgia judges who are going to be voted on not before the recess but this week now when the Senate comes back.  And our other noncontroversial nominees are still in place.  We still hope they’ll be voted on soon, and I don’t mean anything I’m saying today to dissuade the Senate from moving promptly to vote on the other two noncontroversial nominees to whom there is not even a word spoken against them in committee or on the floor or anywhere else to my knowledge.

Later in the presentation, he says a word in particular about the law emerging from the Guantanamo cases:

In my own court we have a variety of judges appointed by both Democratic and Republican presidents and we are a very collegial court.  We all get along well together.  We have -- I think when the final story is written about Guantanamo, we have worked together, 13 of us who did these cases in an extraordinary fashion with a broad spectrum of political and other backgrounds, and yet we did everything on a consensus.  The majority opinion of the Supreme Court said we want these cases acted on expeditiously but we’re not going to give the district court any guidance; we’re sure they can figure it out.  Very helpful.  I’d been chief judge one month when that came down.  (Laughter)

And so I started meetings with my 13 judges, and we really have come to a very broad consensus on the way we would make up this law, which we’ve made up.  We had no guidance from Congress.  We had four different definitions from President Bush.  We got two words in it changed by President Obama, and other than that we’ve been off and running doing the best we could with adjudicating these cases with very little political differences among the judges.

Obviously, judges look at evidence differently sometimes and see it differently, but we’ve developed a broad consensus across the board, and I think all of us are dumfounded . . . as to why there should be all this controversy about mere district judges.  I don’t think that it’s healthy and I’m not totally convinced that it’s true.

The full transcript of this event, including all of the panelists' comments, can be found in the "Downloads" tab on the event site.