15 September 2010

Federal Court Nominations Scorecard

President Obama's progress in making appointments to the federal appellate courts is par for the course based upon recent history.

But, President Obama has lagged in nominating federal trial court judges. He has nominated 59 trial court judges to date, of whom 30 have been confirmed, compared to George W. Bush, who had nominated 94 federal trial court judges at the same point in his presidency, of whom 64 had been confirmed. The urgency of the lag is exacerbated by the fact that there have been 14 more federal trial court vacancies in the Obama administration than in the administration of George W. Bush.

So, there are currently 55 federal trial court vacancies for which President Obama has made no nominations at this time, while there were just 2 at the same point in the administration of Geroge W. bush.

10 Obama nominees have been confirmed to the federal circuit courts to date. At the same point in George W. Bush’s presidency (September 13, 2002), 13 of his nominees had been confirmed to the circuit courts. . . . Obama has also placed two justices on the Supreme Court. George W. Bush secured appointments of two Supreme Court justices but not until his second term in office. . . . at the same point in his first term, Clinton had placed thirteen circuit court judges and two Supreme Court Justices . . . . There are currently 20 vacancies in the circuit courts. On September 13, 2002 there were 28 circuit court vacancies. . . .

So far, 30 individuals nominated by Obama have been confirmed to the district courts. By September 13, 2002, 64 district court judges nominated by George W. Bush had been confirmed by the Senate. (Clinton had placed 70 district court judges at the same point in his presidency.) . . . there are currently 84 vacancies in the district courts. On September 13, 2002, there were just 32 district court vacancies for George W. Bush to fill. . . . Right now, there are only 29 pending nominations for district court judgeships. Half of those have been pending only since May of this year. On September 13, 2002, George W. Bush had 30 pending nominations for the 32 district court vacancies he faced.

From here.

President Obama has also made one nomination for a U.S. District Court post where a resignation has been announced but not yet taken effect, which is not included in the total above.

As of today, September 15, one of the circuit court vacancies described above has been filled, and there are 19 U.S. circuit court vacancies and 11 nominees pending for those posts. So, there are only 8 circuit court vacancies for which no nominations have been made by President Obama. They are, with the date the vacancy arose;

04 - CCA 07/08/2009
09 - CCA 06/12/2010
09 - CCA 12/31/2004
10 - CCA 06/30/2010
11 - CCA 08/29/2010
DC - CCA 11/01/2008
DC - CCA 09/29/2005
FD - CCA 06/30/2010

Senatorial privilege per se doesn't apply to circuit court of appeals appointments, but there are some rather complex traditions involved in appointments to the regional circuit court of appeals designed to balance appointments of judges so that all states in the numbered regional circuit are represented by some judges, and so that Senators from the affected states have a particularly large say in the discussion of those nominees. There are five vacancies on regional circuit courts of appeal for which no nominations have yet been made by the President.

Judicial appointments to the DC Circuit and to the Federal Circuit, like appointments to the U.S. Supreme Court, are largely in the President's discretion, so long as the nominee can secure a filibuster proof majority, which the vast majority of nominees do. Some members of the minority party usually agree to an up or down vote on any judicial nominee unless the particular individual is particularly polarizing, and a nominee who any filibuster threat to receive an up or down vote is almost always approved. There are three vacancies on these court for which no nomination has been made at this point.

In the case of four of the eight vacancies for which no nomination has been made, this is probably simply a consequence of the fact that the vacancies are only about three months or less old.

Two of the vacancies on the 9th Circuit and one of the vacancies on the D.C. Circuit, however, predate President Obama's election, and one vacancy on the 4th Circuit is more than fourteen months old. Presumably, the circuit court judgeship vacancies that pre-date President Obama's election are vacancies that Democrats, including President Obama when he served in the U.S. Senate, fought hard to prevent President Bush from filling. So, the delay in these nominiations is hard to understand.

What Proportion Of Judgeships Are Vacant?

As of today, there are a total of 876 Article III judgeships in the United States:

Supreme Court 9 (No vacancies)
Court of Appeals: (11 nominations for 19 vacancies)
Regional Courts of Appeals 167
Federal Circuit 12
District Courts: (31 nominations for 84 vacancies and 1 pending vacancy)
Article III 675
Territorial Courts 4
Court of International Trade 9 (No vacancies)

Is It Bad To Prioritize Appellate Court Nominations?

Some pundits have faulted President Obama for prioritizing appellate court nominations over trial court nominations, but I don't agree.

Appellate court nomination fights are more likely to provoke partisan fights in the U.S. Senate. Given the political reality that the President's party almost always loses some ground in Congress in midterm elections, it makes sense to try to resolve as many potentially controversial appellate court nominations as possible before the political composition of the U.S. Senate changes.

Vacancies in federal trial courts are much less likely to provoke partisan fights since the Senators from the state involved have generally already signed on to the nomination. Also, federal trial court judges don't make binding precedents interpreting the law. This is not to say that they aren't important or don't have great discretion that hinges on ideology, particularly in the area of criminal sentencing, but it makes their decisions less relevant to Senators in other states.

A filibuster of a federal trial court nominee isn't enitrely unheard of, but it would be unusual.

Why Are There So Many U.S. District Court Judicial Vacancies?

Failure to act on Presidential nominations to the judiciary is the fault of the U.S. Senate, and not the President, of course. But, the failure to nominate judges may be only partially the President's fault.

Under the tradition of Senatorial privilege, a federal trial judge nomination will be considered by the U.S. Senate only if both U.S. Senators from the state where the judge will serve agree with the President's nominee. It would be foolhardy for a President to nominate a federal trial court judge without receiving approval in advance from that state's U.S. Senators.

It is possible that what we are seeing now is that Republican Senators are continuing their strategy of all but a handful of moderate Republican Senators this legislative session of refusing to compromise to any extent with the President on almost anything, even if they might have supported a compromise in prior administrations.

If Republican Senators are refusing to agree to judges who aren't strong ideological conservatives for federal trial court vacancies in their states, this could explain why there have been fewer nominations in the past twenty months for federal trial court posts than in prior administrations.

Does this hypothesis pan out? If the federal trial court vacancies for which there have been no nominations made are disproportionatley in states with one or more Republican Senators, the Senatorial privilege explaination is a plausibe one. If the vacancies don't show that pattern, then this explanation may not hold up to scrutiny.

A list from the administrative office of the courts shows the current judicial vacancies. I have thinned it out to highlight those without a nominee and the date that vacancy arose, followed by the number of Republicans Senators from that state and the number of months that the vacancy has existed:

01 - ME 04/30/2010 (2) 5 months
01 - RI 12/01/2006 (0) 46 months
02 - NYE 10/16/2008 (0) 23 months
02 - NYN 03/13/2006 (0) 54 months
02 - NYS 06/01/2009 (0) 15 months
02 - NYS 04/22/2010 (0) 4 months
02 - NYS 09/17/2009 (0) 12 months
02 - NYS 08/11/2010 (0) 1 month
02 - NYS 09/01/2010 (0) Two weeks
02 - NYW 03/03/2009 (0) 6 months
03 - DE 07/31/2010 (0) 1 month
03 - NJ 05/30/2010 (0) 4 months
03 - NJ 02/09/2010 (0) 7 months
03 - PAE 06/08/2009 (0) 15 months
03 - PAE 07/31/2010 (0) 1 month
03 - PAM 03/31/2009 (0) 17 months
03 - PAM 01/30/2009 (0) 20 months
03 - PAM 04/21/2010 (0) 5 months
03 - PAW 03/15/2007 (0) 42 months
04 - NCE 12/31/2005 (1) 56 months
04 - SC 12/27/2009 (2) 9 months
04 - VAW 07/01/2010 (0) 2 months
04 - WVN 12/18/2006 (0) 45 months
05 - LAE 12/15/2008 (1) 21 months
05 - TXE 01/01/2010 (2) 8 months
05 - TXS 11/12/2009 (2) 10 months
05 - TXS 06/11/2010 (2) 3 months
05 - TXW 02/26/2009 (2) 7 months
05 - TXW 11/30/2008 (2) 21 months
06 - MIE 01/01/2009 (0) 20 months
06 - MIE 05/25/2010 (0) 3 months
06 - OHN 06/01/2010 (1) 3 months
06 - TNM 03/01/2007 (2) 42 months
07 - ILC 02/28/2010 (0) 7 months
07 - ILN 08/12/2009 (0) 13 months
07 - ILN 07/31/2010 (0) 1 month
07 - ILN 02/01/2010 (0) 7 months
08 - ARE 09/30/2008 (0) 23 months
08 - ARW 10/31/2008 (0) 22 months
08 - MOE 12/31/2009 (1) 8 months
09 - AZ 08/03/2010 (2) 1 month
09 - CAC 11/02/2009 (0) 9 months
09 - CAC 01/15/2010 (0) 8 months
09 - CAN 04/03/2008 (0) 29 months
09 - CAS 08/15/2010 (0) 1 month
09 - CAS 06/06/2010 (0) 3 months
09 - MP 02/28/2010 (NA) 7 months
09 - WAE 07/12/2009 (0) 14 months
10 - CO 01/05/2008 (0) 20 months
10 - OKN 01/04/2010 (2) 8 months
10 - UT 11/30/2009 (2) 10 months
11 - FLM 04/08/2010 (1) 5 months
11 - FLS 08/31/2010 (1) 1 month
11 - GAN 01/20/2010 (2) 7 months
11 - GAN 02/09/2009 (2) 19 months

There are 19 vacancies on the list for which no nomination has been made where there could be Republican objections. There are 36 vacancies on the list for which no nomination has been made for which there could not be an exercise of Senatorial privilege by a Republican. The breakdown is quite similar to the partisan breakdown of the U.S. Senate as a whole.

There is also no strong relationship between the number of monnths that a U.S. District Court judgeship has been vacant and the partisan affiliations of the U.S. Senators from that state. Many of the oldest vacancies for which there has been no nomination come fromm states where both Senators are Democrats.

So, the hypothesis that Senatorial privilege is an important factor that is holding up the process of making nominations to federal trial courts, while plausible, isn't well supported by the facts.

Instead, the main factor in the number of district court vacancies seems to be simply delay in naming nominees to those positions by President Obama, perhaps because he feels the need to focus his finite political capital on matters with a strong Democratic majority in the U.S. Senate is necessary to secure his long term objectives.

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