Prioritizing Judicial Vacancies

Jason Mazzone

A number of commentators have written about President Obama’s poor success in filling vacancies in the federal courts.

Some commentators focus on the low rate at which Obama’s nominees have been confirmed. Noting that one in eight federal judgeships is now vacant, the Los Angeles Times reports that “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.” Likewise, the Center for American Progress tells us that because Republican “obstructionists in the Senate are using filibusters and holds at an unprecedented rate,” the pace of confirmation is today “falling off a cliff.”

Looking at the percentage of judicial nominees confirmed isn’t especially useful because it doesn’t tell us how many nominees have actually made it through. A President who sends nominees to the Senate at a fast clip might well have a low success rate but still fill a large number of seats. (If percentages matter, a savvy President could send a raft of nominees and then complain about the Senate dragging its feet.) And because each nominee must be individually considered by the Senate, the total capacity is necessarily limited: looking at the rate of confirmation doesn’t capture how much attention overall the Senate has given to a President’s nominations.

At Slate, Dahlia Lithwick focuses instead on the raw number of positions Obama has filled. She reports that Obama “has seated fewer federal judges than any president since Richard Nixon.” Lithwick deems this a “crisis.” But Lithwick’s approach is also of limited value because Obama has only been in office for 20 months. One can hardly complain that Obama has seated fewer judges so far than did two-term Presidents Reagan, Clinton, or George W. Bush.

So let’s look at the actual numbers.

With respect to nominations to the appellate courts, Obama has done very well. 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.

Going up the ladder, 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. I don’t know how many circuit court judges a Supreme Court justice is worth (five? ten?) but whatever the number, Obama has outpaced Bush at the appellate level overall. By way of comparison, at the same point in his first term, Clinton had placed thirteen circuit court judges and two Supreme Court Justices so he was ahead of both Obama and George W. Bush.

To understand the current crisis, if there is one, we also need to know about unfilled seats.

There are currently 20 vacancies in the circuit courts. On September 13, 2002 there were 28 circuit court vacancies. Whatever the problems the circuit court vacancies today present, they were larger at the same point of George W. Bush’s presidency. If the sky is falling now, it was falling then.

Things look quite different, however, at the district courts. 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.) Obama, then, has placed fewer than half the number of district court judges as did George W. Bush at the same time in his presidency. Even more dramatically, 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.

The lesson should be clear. The President and the Senate should prioritize the appointment of district court judges. 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.

Matching George W. Bush would require Obama to nominate in short order at least an additional fifty individuals to the federal district courts and the Senate to confirm more than half of those without delay.

Obama and the Senate should forget about the circuit court vacancies for now. The circuit courts can manage just fine with twenty vacancies spread around the country. (The Ninth Circuit, which is the largest of the circuit courts and has the highest number of vacancies, has just four.)

Circuit judges can more easily take on a heavier workload than can district court judges. District court judges manage more cases than do circuit court judges. District courts also have fixed obligations (conducting trials, hearing guilty pleas, and so on) that cannot easily be eliminated or shortened. District court judges also have just two law clerks. Circuit court judges have four law clerks (easily one more than they need) and they tend to get the most talented law school graduates. The circuit courts can continue with existing vacancies without any loss in productivity or quality.

Indeed, even with the current 20 vacancies on the circuit courts, as a stop-gap measure resources could probably be shifted from the circuit courts to the district courts: circuit judges can sit as district court judges and conduct trials, they can lend out their law clerks, and so on.

The image accompanying Dahlia Lithwick’s column is of Ninth Circuit nominee Goodwin Liu, with the words “Goodwin Liu still awaits confirmation.” (The Los Angeles Times also discusses Professor Liu's nomination.) That misses the real problem. A more telling image would be of an empty district court seat – for which nobody has even been nominated.
Posted 6:40 PM by Jason Mazzone [link]