President Barack Obama stands to become the first president in at least 30 years to have more openings on the federal bench at the end of his first term than when he started.
The administration and Senate Democrats have called this a “judicial emergency” for the short-handed American courts. During the last few months,
Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.
But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.
Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)
At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.
And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.
“I think the president hasn’t made judicial nominations a real priority of his agenda,” said Dan Urman, the director of Northeastern University’s Law & Policy Doctorate Program, who teaches a class on the nomination process. “If the president had nominated more, and this rate holds up, then he’d have had more people confirmed.”
GEORGIA ON MY MIND
The president of Alliance for Justice, Nan Aron, agrees that had Obama made more nominations, more new judges likely would have been confirmed by now. But she said many Republican senators are withholding their recommendations or approval of potential nominees.
For instance, three judge vacancies in Georgia, including a spot on the U.S. Court of Appeals for the Eleventh Circuit, are considered judicial emergencies, but have remained empty because the White House and Georgia’s two GOP senators have been unable to agree on suitable choices, The Atlanta Journal-Constitution reported on May 9.
For Eleventh Circuit nominee Jill Pryor, those senators, Saxby Chambliss and Johnny Isakson, have not yet passed along their “blue slips” to the Senate Judiciary Committee, a courtesy given to home-state senators allowing them to express their opinion before a nomination hearing. The senators also blocked two nominees for the district court, and there are still no replacement nominees for the spots.
Democrats have blamed these Republican stall tactics for the low number of confirmations. Senator Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, said last month that 27 vacancies involve a Republican home-state senator who has refused to either recommend a candidate or agree to a judicial nominee, and there are seven nominations on which the Senate Judiciary Committee cannot proceed because Republican senators have not returned blue slips.
White House spokesman Eric Schultz did not directly address why the White House had a slower nomination pace. When asked, Schultz said in a written statement that the Senate could act now on the 19 remaining judicial nominees, half of whom would fill judicial emergencies and almost all of whom had bipartisan support.
“But they continue to wait four to five times longer than President Bush’s judicial nominees did for a confirmation vote,” Schultz said. “We urge Senate Republicans to drop these unprecedented delays because Americans from all walks of life deserve a functioning judiciary.”
Senator Mike Lee (R-Utah), who has led opposition to Obama’s judicial nominees, blamed the president’s failure to nominate more judges for the glut of judicial openings. “I don’t have a problem with him taking his time, what I have a problem with is him taking his time and then suggesting the reason there [are] so many judicial vacancies is because of us,” Lee said in an interview.
It was threats of opposition from Lee and other Republicans this year that led Senate Democrats to make a rare move to force votes on judicial nominees. The fight over judicial nominees reached a standoff in March, only to have Senate leaders from both sides agree to hold votes on 14 nominees at a pace of about two judges per week through May 7.
Senate Democrats and Lee say they anticipate the pace continuing for the rest of the year, despite the so-called “Thurmond Rule,” an unwritten gentlemen’s agreement among the senators that supposedly calls for judicial confirmations to slow down in the last six months of a presidential term.
Russell Wheeler, a Brookings Institution fellow who tracks judicial nominations, said private attorneys who become nominees are put in professional limbo and can be reluctant to go forward if there is such a long delay before confirmation. “If you send up someone you know a senator is going to refuse, you’re wasting everybody’s time,” he said.
At this point in the administration, the chances of a new nominee making it through the confirmation process are “very slim,” Wheeler said.
That is bad news for places like the Middle District of Pennsylvania. Chief Judge Yvette Kane said she spent May 7 driving more than 80 miles to the district’s courthouse in Williamsport for a one-hour hearing in a death penalty case.
Williamsport has many U.S. attorneys and federal agents who interact with the court, Kane said, and recently there has been a spike in contract and illegal immigration cases. But there has been no judge in the courthouse since July, when 96-year-old Senior Judge Malcolm Muir had a stroke while working in his chambers and died a few days later.
The judges now take turns traveling there during the week, preventing them from addressing summary judgment requests or holding hearings on their own cases, Kane said. “It really does take a toll on us not to be here,” Kane said. “I don’t think anyone can look at this and say this isn’t going to have an effect on citizens in the district.”
The vacant judgeship at the Williamsport courthouse has been declared a “judicial emergency.” There are rumors about the person who is expected to get nominated for the spot, but so far, the White House has not yet made a nomination.
Todd Ruger can be contacted at firstname.lastname@example.org.