Wisconsin Marriage Equality Lawsuit and the Judicial Vacancy Crisis

The ACLU of Wisconsin announced Monday that it is suing in federal court to vindicate the freedom to marry of four same-sex couples. They note that Wisconsin not only prohibits same-sex couples from marrying, it has a "Marriage Evasion Statute" that makes it a crime for Wisconsin residents to leave the state to enter into a marriage that is void in the state:

Wisconsin law subjects same-sex couples to an additional harm that is unique among states that deny same-sex couples the freedom to marry. The only way for Wisconsin couples to get the federal protections that come with marriage is for them to go out of state to marry. But Wisconsin law says that may be a crime punishable by nine months in jail and a $10,000 fine.

The federal lawsuit has been filed in the Western District of Wisconsin, a district with a longstanding vacancy that has been designated a judicial emergency by the Administrative Office of U.S. Courts. The Western District has only two active judgeships, and one of them has been vacant for more than five years. Even if the vacancy were to be filled this instant, the Judicial Conference of the U.S. has asked Congress to create a new judgeship there so the work of justice can get done.

President Obama's first nominee was blocked by Senate Republicans from 2009-2011. Hopefully, Obama's current nominee (James Peterson) will fare better. The ABA panel that evaluates judicial nominees' qualifications unanimously gave him its highest rating. The Judiciary Committee has vetted him fully and was scheduled to vote to advance his nomination to the full Senate last week, but committee Republicans demanded and received a week's delay, as they have done with all Obama judicial nominees as a matter of course. But the vote has been rescheduled for this Thursday, at which point Peterson and two other nominees will find themselves at the end of an increasingly long line of bottled-up nominees unable to get a simple confirmation vote. Since Republicans have not consented to any confirmation votes so far this year, there are already 29 people in this bottleneck.

Both Sen. Ron Johnson and Sen.Tammy Baldwin support the nominee. Johnson has cited the judicial emergency and called for Peterson's "swift confirmation." Whether that happens will be up to Johnson's party leader, Mitch McConnell, whose approval is needed before the Senate can hold confirmation votes on the 29 nominees ahead in line without undergoing time-consuming cloture motions, votes, and more than 200 hours of post-cloture debate.

As the marriage equality lawsuit shows, federal courts deal with critically important issues that have an enormous impact on people's lives. But the justice system needs judges to work, and that requires a functioning Senate willing and able to carry out its essential functions.

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