March/April 2010:
Will the Pace of Judicial Nominations Pick Up?

Washington Watch | March/April 2010
By Bruce Moyer

The power to nominate federal judges is one of the greatest prizes of the presidency, legal analyst Jeffrey Toobin commented recently in The New Yorker. And execution of that power, or so the conventional thinking goes, is sweetened when the President’s party also controls the Senate, which constitutionally must “advise and consent” upon the appointment of all judicial nominees. Since assuming office, President Obama has nominated 33 candidates for district judgeships, and the Senate has approved 11 of them. He has nominated 15 candidates for circuit courts and has won approval of six. At the same point in his presidency, George W. Bush had secured Senate confirmation of more than five times as many district judges and almost three times as many appeals judges; in a comparable period since taking office, Bush won Senate approval for 61 district court nominees and 15 appeals court nominees.

Out of 854 appeals and district judgeships in the federal judiciary, 103 currently are vacant: 19 of the 179 appellate court judgeships are empty, and 84 of the 675 district judgeships (more than 10 percent) are waiting to be filled. According to the Administrative Conference of the U.S. Courts, 30 of those vacancies constitute “judicial emergencies.” At least another 21 district judges have announced their intent to resign, acquire senior status, or retire before the end of this year. Clearly, if the growing number of judicial vacancies is not filled soon, the swift dispensation of justice by our federal courts will take a hit.

So why has the pace of nominations over the past year been so surprisingly slow? Four reasons have contributed to the holdup.

First, the Obama administration has been slow to identify and vet judicial nominees. For this White House, faithful adherence to the tradition of senatorial home state involvement in district and circuit judicial nominations (including participation by Republican senators) has been a protracted and time-consuming process. In the spirit of post-partisanship, the White House began its tenure believing that engaging the opposition party at the front end of the judicial nomination process would help clear the political brush at the back end. That goal has not played out in practice, though it has resulted in six consensus confirmations of circuit nominees who are rich in intellect, balanced in temperament, and relatively mainstream in their ideological leanings.

Second, despite the diligence exhibited by Patrick Leahy, chair of the Senate Judiciary Committee, and his success in moving most judicial nominees through his committee, nominations have floundered in securing floor time. Although Republicans have criticized some nominees for their credentials, the opposition party has succeeded largely in slowing down the pace of all nominations by using the Senate’s complicated and bedeviling rules. Take, for example, the elevation of Joseph A. Greenaway Jr., a noncontroversial district judge, from the New Jersey federal district court to the Third Circuit Court of Appeals. It took more than seven months from the time Martin was nominated in June 2009 until the Senate approved his candidacy by an 84-0 vote in February 2010.

Third, more than a year into the Obama presidency, the principal office in the Justice Department responsible for filling the judicial pipeline is still without a confirmed director. Christopher Schroeder, a law professor at Duke University, was first nominated to head the Office of Legal Policy in May 2009. Republicans have held up his nomination since then, despite a 16-3 voice vote supporting him in the Judiciary Committee in July. In addition, the nomination of Dawn Johnson to lead the Justice Department’s Office of Legal Counsel has been in limbo for months.

Finally, over the past year, the legal brainpower of the White House and the Justice Department has been strained by a host of unexpected, unprecedented, and legally complex issues involving the economy and other concerns, not to mention homeland security and terrorism. Work on district and circuit judicial nominations also slowed last summer while the Obama team focused on securing the successful confirmation of Supreme Court Justice Sonia Sotomayor.

The opportunity to name one or two more nominees to the Supreme Court may come President Obama’s way possibly later this summer. Before that happens, his administration will have a brief but ample window to focus on the federal bench pipeline and improve upon the relatively lackluster appointment record compiled by the Senate during his first year in office.

Bruce Moyer is government relations counsel for the FBA. © 2010 Bruce Moyer. All rights reserved.

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