April 2012: Sizing Up Obama’s Record on Judicial Nominations


Washington Watch | April 2012
By Bruce Moyer

Judicial vacancies remain a constant focus of the Federal Bar Association. Lapses in the filling of judgeships result in higher caseload demands on existing judges as well as delay in the hearing of cases, especially on the civil side. The administration of justice suffers when judgeships go unfilled, especially for extensive periods of time. That's why the FBA has devoted extensive effort toward encouraging the President and Congress to devote their best efforts toward keeping the federal bench filled.

Judicial vacancies have heightened especially during the last three years. During the first two years, a slow stream of judicial nominations from the Obama White House and aggressive procedural obstruction in the Senate produced near-record numbers of judicial vacancies at the circuit and district court levels. Over the past year, conditions improved. The White House picked up the pace in nominating candidates, and the Senate cleared a higher number of judicial nominees than it did in the two preceding years. During 2011 alone, the Senate confirmed over half of all the district judges it approved to the bench during the entire three years of the Obama administration (53 of 97).

Over the past three years, the Senate has confirmed 97 of Obama's district court nominees and 25 of his circuit court picks, giving the President 41 fewer district judges and four fewer circuit court appointees than President George W. Bush had at this point in his presidency. In circuit judge nominations, Obama has made five more circuit nominations than President Bill Clinton did, but 12 fewer than Bush, who submitted 49 appellate nominations by this point in his presidency, according to data compiled by Russell Wheeler, the Brookings Institution's expert on U.S. courts.

At the end of the third year of their first terms in 1995 and 2003, respectively, the Clinton and Bush administrations had reduced the number of judicial vacancies they had inherited from their predecessors. This contrasts with the Obama record, under whom vacancies on district courts have skyrocketed. (Circuit court vacancies have remained roughly the same.) The number of district judge vacancies fell from 90 to 50 during the Clinton administration and from 54 to 35 during the Bush administration. But under the Obama administration, the number of district court vacancies during the same period rose from 41 to 65.

In a recent study, Wheeler suggests that the increase in vacancies on district courts stems from two factors: fewer nominations by Obama, compared to Clinton and Bush, and a spike in the number of judges who took senior status in the first three years of the Obama administration. During those three years, 92 judges took senior status, compared to 72 and 70 in the Clinton and Bush administrations, respectively. "Had district judges taken senior status in Obama's first three years at the same rate they did under Clinton or Bush, there would have been almost no increase in vacancies, and had he made more nominations, and gotten fewer confirmations, the number of vacancies would have decreased," Wheeler observes. Obama made 32 more district nominations than Bush at this same point in their terms, and 46 fewer than Clinton, according to Wheeler.

Why the slow pace in the nomination of district judge nominees by the Obama White House? Wheeler suggests that divisions between the administration and home-state senators, Republicans and Democrats alike, over candidates, as well as initial disorganization in the Obama administration's judicial nomination machinery, contributed to the delay. He also points out that, even though President Obama's nominees received Senate confirmation hearings more quickly than did those during George W. Bush's administration, the nominees have waited longer, overall, to be confirmed. Three of Clinton's 151 confirmations of district judges took longer than 180 days, whereas 51 of Obama's 97 confirmations took 180 days or longer.

Has Obama changed the political appointee-majorities of the courts? When Obama assumed office, Republican appointee majorities existed in nine of the 13 courts of appeals; six had at least twice as many Republican appointees as Democratic appointees. Over the last three years, appeals courts with Republican appointee majorities have declined from nine to seven, and those with especially strong Republican majorities have gone from six to three.

Looking ahead, the conventional wisdom is that, during the fourth year of a presidency, fewer nominees clear the confirmation finish line. The minority party is inclined to dig in its heels further, preferring to keep open judgeships vacant, with the chance that they may be filled by their party's president a year from now. History during the past two administrations does not necessarily bear that out. In 1996, the Republican-controlled Senate confirmed 18 of Clinton's nominees for district judgeships (16 in July alone) and two nominees for circuit judgeships. In 2004, another Republican-controlled Senate confirmed 30 Bush nominees for district court and five nominees for circuit court. Will history continue to repeat itself?

Bruce Moyer is government relations counsel for the FBA. © 2012 Bruce Moyer. All rights reserved.

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