Why so many federal judge vacancies in St. Louis? Hawley and the White House trade blame

ST. LOUIS — An impasse over judicial appointments between U.S. Sen. Josh Hawley and the White House has left half of the federal judgeships in the Eastern District of Missouri vacant, the most of any federal district court in the country.

The Judicial Conference of the United States, the national policymaking body for the federal courts, has designated the four vacancies in St. Louis federal court as “judicial emergencies” based on the remaining judges’ caseloads. Three of the four vacancies here have been unfilled for over a year.

The empty judgeships here are due to the U.S. Senate’s tradition of allowing either of the two senators from a state to keep a president’s judicial nominee, who must be confirmed by the upper house of Congress, from receiving a hearing by withholding his or her “blue slip.”

President Joe Biden, a Democrat, has not nominated even one judge in Missouri, nor has he named a U.S. Attorney in St. Louis, a position that follows a similar confirmation process. In other states with two Republican senators — Indiana, Texas, Florida and Oklahoma, for instance — the Biden White House has been able to reach consensus with the GOP senators and nominate judges.

But in Missouri, Hawley, the state’s senior senator and a Republican, has obstructed the process as a “political power play,” said Kevin O’Malley, a St. Louis attorney and former ambassador to Ireland under President Barack Obama who is familiar with the negotiations.

“Missouri is not the only state that doesn’t have a Democratic senator, and in almost all of those states, including some as red as Missouri, an agreement was able to be reached between President Biden and the senators to fill those vacancies,” O’Malley said. “President Biden’s history of bipartisanship and working across the aisle is pretty well established, that even Republicans are forced to admit that he has been willing to work with them and compromise with them to accomplish the greater good. And I think Senator Hawley’s fist bump to the insurrectionists speaks about his willingness to compromise.”

Practically, the shortage of judges has increased the caseload on remaining judges and may be slowing proceedings, lawyers say. But observers also worry the lack of appointments could have another consequence.

If former President Donald Trump and Hawley win second terms next week, they’ll have the opportunity to remake the federal bench in St. Louis into one dominated by Trump appointees. Seven of the eight active federal judges in St. Louis could be Trump picks if the former president is reelected.

That, some worry, could potentially turn the Eastern District of Missouri into an attractive venue for conservative litigants — like those represented by Hawley’s wife, Erin Hawley, a key lawyer in the Texas case against common abortion drug mifepristone — to challenge reproductive care rules, race-based programs and federal regulations.

“You’ve basically created a center of litigation against the federal government,” said Mike Wolff, a retired Missouri Supreme Court judge who has followed the issue.

In a statement provided by his spokeswoman, Abigail Jackson, Hawley claimed he had reached a deal with the White House on nominees, “but the White House took no action after Joe Biden dropped out of the presidential race. It’s disappointing. Senator Hawley remains committed to confirming qualified judicial nominees that are good for Missouri.”

A spokesman for Republican Sen. Eric Schmitt did not respond to a request for comment on his negotiations with the White House.

But a Biden administration official, who was not authorized to speak publicly, pushed back on Hawley’s characterization, saying the administration had tried to fill the vacancies for nearly two years.

“Despite repeated efforts by the White House at putting forward a negotiated package of nominees, the Missouri Senators have done little more than feign interest in agreement,” the administration official said. “In fact, the White House has heard nothing from Senator Hawley’s office since March, when the White House asked Senator Hawley to identify concerns with the highly qualified candidates that the White House had offered as part of a one-for-one package. That silence speaks volumes. The Senators’ refusal to come to an agreement jeopardizes the effective administration of justice for the people of Missouri. It also calls into question the Senators’ stated concerns for public safety and the rule of law.”

The whole judicial confirmation process has become increasingly politicized, said University of Richmond law professor Carl Tobias, who closely follows judicial nominations. But he said in other states with two Republican senators, the Biden White House has been able to reach consensus and nominate judges. Hawley has voted against nearly every Biden nominee even in other states, he said.

“They’re just trying to wait out Biden and hoping that Trump will win,” Tobias said. “I think Missouri is probably the worst right now, just in terms of lack of cooperation, or any sense of working with the White House.”

All four of the recently retired judges in St. Louis were appointed by Democrats. Three of the judges are now on “senior” status, meaning they continue to take a reduced caseload. Court observers say many of them have taken larger caseloads to keep the federal court moving in the absence of new appointees.

Former Judge Ronnie White retired altogether and is no longer taking cases. And White’s road to the federal bench shows there have been impasses before. When former President Bill Clinton nominated White the first time, his confirmation vote was blocked by then-U.S. Sen. John Ashcroft, a Republican.

But some 15 years later, White was again nominated, this time by Obama. And then, even though Missouri Sen. Roy Blunt voted against White on the floor, the GOP senator still released his “blue slip” to allow White to have a hearing and confirmation vote.

“Things used to be, I’ve been practicing law for 45 years, they used to be nonpartisan,” said St. Louis attorney Alan Mandel, who has been involved in Democratic politics. “You would find somebody who was acceptable to Senator Blunt or Senator (Kit) Bond. We’ve had two Republican senators with a Democratic president, and these things generally got done.”

Jim Holloran, a longtime St. Louis attorney and Democratic party donor, was skeptical that Hawley was willing to compromise with the White House on appointees.

“I don’t want to say it’s hard for me to believe but it is hard for me to believe,” he said. “The Democrats want to deal, there’s just no question about it, and have some input on who’s going on the bench.”

While he and others suspect Hawley was waiting out the Biden administration, hoping Trump will win to fill the appointments and remake the St. Louis bench, if Vice President Kamala Harris wins, Hawley and Schmitt may have to compromise with a Democratic White House.

“They can’t go four years without having some of these district judges appointed,” Holloran said. “There’s just too big a workload there.”