October/November 2012: The Elections and Judicial Vacancies

Washington Watch | October/November 2012
By Bruce Moyer

Judicial vacancies have not been a headlinegrabber in the final phase of the Presidential and Congressional elections. But the speed of Senate action on judicial nominees has been distinctly affected by the approach of the elections. Senate Minority Leader Mitch McConnell (R-Ky.) in mid-June invoked the so-called “Thurmond Rule,” a Senate practice of barring Senate floor votes on circuit court judicial nominations (consensus or otherwise) until after the approaching presidential election. Since that time, action on all circuit court nominees has been held up.

District court nominations have continued to move slowly through the Senate, with confirmations occurring at the pace of about one per week while the Senate has been in session. Many vacancies, almost half of the roughly 70 that exist on the federal bench, are in judicial districts designated as “judicial emergencies” (because of caseload and the duration of the vacancy) by the Administrative Office of the U.S. Courts.

While the federal judicial vacancy rate has fallen from its high-water mark of 105 earlier this year, it has remained in the 70s for the past several months, a still lamentable number. This represents a little less than ten percent of the entire federal bench. Of those vacancies, most are district judgeships and 13 are circuit judgeships, along with two to the U.S. International Court of Trade.

A recent report by the Congressional Research Service helps to inform the debate over judicial nominations during the Obama Administration. Much of the analysis of the Obama record has focused on its slow pace and inferior number of judicial confirmations compared to past administrations. There will be more vacancies on the federal bench at the end of Obama’s term as president than there were at the start.

Overall, President Obama’s 29 confirmed circuit court nominees currently fill 16.2 percent of the nation’s 179 authorized circuit court judgeships, while his 116 confirmed district court nominees currently fill 17.2 percent of the nation’s 673 authorized Article III district court judgeships.

The district and circuit courts to which judicial nominees have been confirmed arise from the vacancies that existed when President Obama took office or that subsequently arose during his presidency. The distribution across geographic circuits among those Obama appointees, consequently, is not uniform. This has led to notable variation among the 12 geographic circuits and the Court of Appeals for the Federal Circuit in the number of U.S. circuit and district court judgeships held by President Obama’s appointees as well as in the percentage of circuit and district judgeships in each circuit held by his appointees.

President Obama has appointed the greatest number of U.S. appeals court judges to the Fourth Circuit (i.e., six confirmed nominees), the Second Circuit (five), the Ninth Circuit (four), and the Federal Circuit (three). In contrast, no nominees of President Obama have been confirmed to either the Eighth Circuit Court of Appeals or the U.S. Court of Appeals for the D.C. Circuit. The Eighth Circuit, comprising Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, does not have any existing vacancies.

There currently are three vacancies on the D.C. Circuit, including U.S. Chief Justice John G. Roberts’ former seat on the court. Obama’s two nominees to the D.C. Circuit remain blocked by Republican resistance. If no appointment to the D.C. Circuit occurs before Jan. 20, 2013, President Obama will be the first President in more than 50 years who has served a full four-year term without having a single nominee confirmed to the D.C. Circuit, informally known as the second-highest court in the land.

The CRS report also points to other factors that can help to explain differences or variations found in judicial appointment statistics across recent presidencies. For example, whether the selection process itself is a priority for a President, the level of consultation with and time taken by home state senators to make judicial candidate recommendations and the time taken to fill a Supreme Court vacancy all affect a President’s judicial appointment record.

Additionally, there are institutional and political factors that may influence the record. These include ideological differences between the President and the opposition party in the Senate, the extent of interest group opposition to certain nominees, the presence or absence of “divided government,” the point in a congressional session when nominations arrive in the Senate and whether nominees have the support of both of their home state senators.

Judicial appointments to the federal bench represent one of the greatest legacies of a Presidential administration. President Obama’s judicial appointments record over the last four years is mixed. Whether Obama will be given the chance to improve that record over the courts for four more years is now the big unknown.

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

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