Friday, January 20, 2012

Judicial Vacancies: From Bad To Worse

I've written often about the scandalous vacancy rate in the federal judiciary, which has been caused by Obama's dithering, Senate Democrats' acquiescence and, most of all, a Republican strategy that takes full advantage of the first two.  (See, e.g., Scooping Linda Greenhouse, The GOP Plan To Obstruct Judicial Nominations, Tit for Tat, Courting Disaster.)

A new report by the Brookings Institute confirms that three years into Obama's first term, judicial vacancies have actually risen.  As NPR summarized, "the report shows that Obama has been slower to nominate trial judges, the Senate slower to confirm them, and at the same time a larger number of judges are retiring."

Obama has nominated 133 district court judges and 37 court of appeal judges thus far.  At this stage of his first term, Bush had nominated 165 for district court and 49 for the appellate court.  In addition, Senate Republicans have successfully slowed the process so that district court nominees have waited an average of seven months to win confirmation, even when there has been no real opposition.  More than a quarter of the 133 nominees are still awaiting confirmation, a significantly lower confirmation rate than under prior administrations. 

The one bright spot for judicial vacancies is that the judges who are nominated and ultimately confirmed are diverse.  Nearly half are women; more than a fifth are African American; 11 percent are Hispanic; and 7 percent are Asian American.  In addition, the first openly-gay man was recently confirmed.  In sum, 38% of Obama's appointments are white males, compared to 66% under Bush.

As Republicans long ago recognized, the composition of the federal courts of appeal (aka circuit courts) is critical because, given how few cases reach the United States Supreme Court, they are often the ultimate arbiter of the application, enforcement and interpretation of federal regulations and statutes.  And when cases are taken up by the Supreme Court, how the lower federal courts have framed the issues or resolved factual disputes is critical to their resolution.  Accordingly, Republicans continue to dominate the circuits, although Obama has increased the percentage of appellate judges appointed by a Democrat from 37% to 44%.

While Republicans doggedly try to maintain their ideological advantage, Obama and his fellow Democrats have to be far more aggressive in making the federal judiciary a priority.


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