The unfilled vacancy on the U.S. Supreme Court, while the most talked about right now, is just the latest in a long line of unfilled seats on the federal bench. Just this month, a retirement from D.C.'s U.S. District Court brought the total number of judicial vacancies up to 84, and if Merrick Garland is indeed confirmed to the country's highest court, it will create yet another vacancy on the D.C. Circuit Court of Appeals, where he currently serves as chief judge.

The open positions are leading to a backlog of cases across the country and an overworked judiciary that has to do more with less. Amid the political sandstorm that is the Supreme Court nomination process, it is easy to forget that litigants seeking justice in federal courts are significantly more likely to appear before a trial judge or even an intermediate appeals judge rather than the Supreme Court. The dockets in 32 jurisdictions are so packed that the Administrative Office of the U.S. Courts has labeled them "judicial emergencies."


The delay in filling judicial vacancies has real-world effects. With over 400,000 cases filed in federal courts annually, each federal jurist must work that much more to cover the gaps left by open seats. Things are so bad in the Eastern District Court of Texas that each judge is saddled with an average of over 1,220 weighted case filings. One post in North Carolina's federal court system has been open for over 10 years.

For all of the political rhetoric swirling around Judge Garland's nomination, politicians may be seeing distorted facts when it comes to hearings, nominations and new judicial posts. A top lawyer in a powerful Senate Committee thinks Washington is getting overstated information when it comes to the cost of authorizing new judgeships. In a recent piece in the Harvard Journal on Legislation, George Everly — the chief counsel of the Senate Budget Committee — noted that while caseloads in the federal trial courts have grown by 38 percent since 1990, the number of district judgeships expanded by only 4 percent.

Mr. Everly and his co-author argue that the Congressional Budget Office's high cost estimates for adding judgeships, which Congress members use to argue against new positions, are fundamentally flawed. Instead of focusing solely on the average costs of adding a new judgeship, which CBO says is $1 million up front followed by $770,000 per year before factoring in salaries, a more useful metric would be based on the benefits and net expenses in each jurisdiction. The authors concluded that withholding federal judgeships from high-caseload jurisdictions can be "penny-wise and pound-foolish, impeding the efficiency and cost-effectiveness of the Judiciary."

It would be unfair to say that the Senate has done nothing to fix the problem of judicial vacancies — next to nothing might be more accurate. Since April 2015, the chamber has only confirmed a total of 16 individuals to the federal bench.

Just this month, Senate Majority Leader Mitch McConnell declared that filling Scalia's vacant seat was not about cost, not about the person, but instead "about a principle" of the American people having a voice in the confirmation. As has been pointed out by John Oliver among others, that principle ignores the votes cast a little over three years ago in November 2012.

In Federalist #78, Alexander Hamilton wrote that an independent judiciary was a bulwark of our Constitution. Unfortunately, legislative inaction is hindering the ability of the judiciary to operate at full capacity — not just for the Supreme Court but for the entirety of the federal court system.

Nearly 10 percent of all seats on the federal bench currently sit vacant. The Senate must do its job so that the members of the judiciary can do theirs.

Tommy Tobin is a teaching fellow in the economics department of Harvard University and a student at Harvard Law School; his email is