The Senate confirmed federal judges at a faster rate in the past five months than at any time during President Barack Obama’s administration — significantly reducing the number of vacancies on the nation’s courts.
The average number of judicial confirmations per month since March was 11. The monthly average during the rest of Obama’s presidency? Four.
Senate Democrats made ­confirmations a higher priority this spring in part for fear of losing their majority in the November elections, lawyers and scholars who closely watch the confirmations process said. Partisanship on Capitol Hill stalled progress on major legislation, leaving time on the Senate floor to move Obama’s judicial picks.
At the same time, historic changes to the Senate’s filibuster rules — put in place in November during a fight over nominations to a key federal appeals court in Washington — prevented Republicans from getting in the way.
The urgency to fill judicial slots might be based on politics, but the effect is practical. The high number of vacancies during Obama’s presidency — which hovered around 90 for several years amid stalemates in the confirmations process — caused litigation costs to increase, judges to spend less time on cases and made civil disputes harder to settle, according to a July report from The Brennan Center for Justice.
HALVING NUMBER OF OPENINGS
Now the judiciary has 57 vacancies on the district and circuit courts, in addition to the U.S. Court of International Trade. That’s only two more vacancies than Obama inherited, and nearly half as many as the 109 vacancies one year ago.
Since March, 20 judges assumed spots in district courts where administrators had declared “judicial emergencies” based on caseloads and the lengths of vacancies. In May, for example, the Senate approved six judges for the District of Arizona — a court so overwhelmed by immigration and drug-­trafficking cases that the former chief judge there suggested in 2012 that it might be hard to find candidates willing to serve on the bench.
Democrats this year focused ­intently on moving appeals court nominees because a Republican-controlled Senate might render confirmation votes “few and far between in the last two years of the administration,” said Ed Pagano, who managed the White House Senate Legislative Affairs Office before joining Akin Gump Strauss Hauer & Feld.
“I think you can say the result is the president will leave a progressive stamp on the judiciary,” Pagano said.
Senators confirmed 10 circuit court nominees since March. The Senate is expected next month to confirm the last pending appellate court nominee, Jill Pryor, for a spot on the U.S. Court of Appeals for the Eleventh Circuit.
The nominations push gave the Ninth and Fourth circuits full benches.
“The most striking piece of his success is the appeals court vacancies are at their lowest level since 1990,” said Carl Tobias, a professor at the University of Richmond School of Law who tracks judicial nominees. “That’s real progress at that level, which has been the most contentious part of the process.”
‘NUCLEAR’ BUTTON PUSHED
Under the Senate’s old rules, Repub­licans likely would have blocked four of Obama’s appeals court nominations and one district court nomination. The rules change, dubbed the “nuclear option,” reduced the number of votes needed to end a filibuster from 60 to a simple majority. Senate Republicans have 45 votes, so 41 votes would have been enough to filibuster a nominee under the prenuclear scheme.
Republicans last month, for instance, opposed but could not block the nomination of Pamela Harris, a former O’Melveny & Myers partner who once described herself as “a profoundly liberal person.” Harris received 43 “no” votes on her July 28 confirmation to the Fourth Circuit.Munger Tolles & Olson partner John Owens received 43 “no” votes in his March 31 confirmation to a seat on the Ninth Circuit; David Barron, a Harvard Law School professor, received 45 “no” votes in his May 22 confirmation to the First Circuit.