Legal logjam leaving judges’ seats empty in federal courts
Almost one in eight federal judgeships is vacant in the country and legal scholars warn that the increasingly politicized confirmation process threatens the administration of justice across the nation.
Democrats and Obama administration officials accuse the Republican minority in the Senate of systematically opposing the president’s nominees to prevent him from putting his stamp on a judiciary that, Democrats say, moved to the right under President George W. Bush.
FOR THE RECORD:
Judicial logjam: An Aug. 31 article and chart in Section A about judicial vacancies said that the 47% rate of confirmation of President Obama’s nominations to the federal judiciary compared with 87% for President George W. Bush during his first 18 months in office. The 87% rate was for Bush’s entire eight-year presidency; for Bush’s first 18 months, the rate of confirmation was 61%. Additionally, the confirmation rates given for Presidents Clinton (84%), George H.W. Bush (79%) and Reagan (93%) were for their full presidencies and not their first 18 months. —
Republicans and conservative analysts say the stalled pace of “replenishment” is part payback for congressional Democrats’ efforts to scuttle some Bush nominees and part indifference on the part of President Obama, who they say has been slow to nominate judges.
Of the 102 federal judgeships open, there are nominees pending for 39 seats.
“Republicans can’t block something that’s not there,” said Don Stewart, an aide to Senate Minority Leader Mitch McConnell (R-Ky.).
Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.
If the current rate of replacing retired, resigned and deceased judges continues, Assistant Atty. Gen. Christopher H. Schroeder warned, nearly half of the 876 federal judgeships could be vacant by the end of the decade.
“A determined minority is skillfully navigating the process to prevent an up-or-down vote on nominees,” Schroeder told a gathering of Western judges and lawyers here recently, referring to Senate Republicans who have refused to provide the traditional unanimous consent for a confirmation vote on most Obama nominees.
Schroeder, whose Justice Department Office of Legal Policy helps the White House vet nominees, alluded to Senate Democrats “having gone first” in filibustering some Bush appointments. But the GOP strategy now appears to be to block Obama’s choices across the board, said Schroeder, whose own confirmation was held up nearly a year by Republicans in Congress.
“Their objections often are unrelated to a specific nominee. They’re systematic attempts to throw sand in the works,” Schroeder complained at the U.S. 9th Circuit Judicial Conference this month.
The 9th Circuit, whose appellate court is the busiest in the federal system, has fared even worse than on the national scale, with 13% of the nine-state region’s judgeships vacant.
Just before the Senate recessed in early August, two key 9th Circuit appointments were sent back to the White House, effectively scuttling the chances of UC Berkeley law professor Goodwin Liu joining the appeals court or San Francisco Magistrate Judge Edward M. Chen being elevated to the U.S. District Court for Northern California.
In July, McConnell blocked a 4th Circuit nominee from getting a vote on the Senate floor. The minority leader said he was retaliating for Democratic rebuffs of Bush appointments to the same circuit.
The delay, however, was temporary. Stewart, the McConnell staffer, noted that the 4th Circuit appointment and three other district court confirmations were made with Republican consent just before the Senate began its recess.
“Most of his nominees are stuck in committee, over which we have no control,” Stewart said of the Judiciary Committee, chaired by Sen. Patrick J. Leahy, a Vermont Democrat.
Curt Levey, executive director of the conservative lobby Committee for Justice, said neither Obama nor Senate Majority Leader Harry Reid (D-Nev.) has made a priority of filling judicial vacancies.
“Republicans can’t stop Reid from bringing things to a vote, but what they can do is make the majority leader pick his priorities,” Levey said. He was referring to the option of invoking cloture, which allows the majority to call a vote but at the price of ceding the Senate floor for a maximum of 30 hours of debate, at the expense of other legislation sought by the administration.
Obama has been taking longer to make nominations after learning of openings than did Bush, said Russell Wheeler, a Brookings Institution scholar who studies the selection of U.S. judges. Obama has taken an average of 325 days between vacancy to nomination, compared with 277 days for Bush. That might be explained in part, Wheeler said, by Obama’s decision to resume having the American Bar Assn. evaluate potential nominees — a practice abandoned by Bush.
Judicial analysts also point out that Obama has already appointed two Supreme Court justices, nominations that consumed much of the time the Judiciary Committee might otherwise have devoted to considering lower-court nominees.
But what was previously a politicized practice of holding up nominees to the circuit courts of appeal has “spread like a virus to the district courts,” Wheeler said. Bush got 98% of his nominees to the federal trial courts approved at this stage in his administration, Wheeler said.
The 9th Circuit needs more judges to expeditiously handle appeals, said the circuit’s Chief Judge Alex Kozinski. But it’s at the district court level that he is most concerned, he said, because of mounting caseloads.
Supreme Court Justice Anthony M. Kennedy, on hand for the 9th Circuit retreat, took note of the confirmation conflicts without assigning guilt to either political faction.
“It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”