an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Jason Mazzone [link]
As to appellate judges, there still were MORE judges confirmed with a Republican President and Democratic (if barely) Senate. And, this with Obama doing more to reach out to the other side, a side that is smaller. This seems to me at least somewhat of a lost opportunity.
Him confirming two justices is of limited appeal in a fashion because realistically you cannot hold up a justice to the degree you can for the others. And, one of these was Kagan, which replaced Stevens with a compromise choice. This to some of us left something to be desired.
Your concern about district court judges is a sound one all the same. The importance of district court judges and their factfinding role alone has been shown of late.
Although she doesn't explicitly say so, my impression was that Lithwick meant Obama has had fewer judges confirmed than any president since Nixon at the same point in his presidency. The other reading would be transparently silly.
"Right now, there are only 29 pending nominations for district court judgeships. Half of those have been pending only since May of this year."
A point made by Patterico: It takes time to get a nominee confirmed. If you start out slow at nominating judges, (And nobody denies Obama did.) and then play catchup, your confirmation numbers are going to look bad, simply because you've got a lot of judges in the pipeline who haven't had TIME to be confirmed.
I'd say the Obama lesson on judges is, if you want confirmations, you have to make nominations.
"So let’s look at the actual numbers. . . . 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 . . . ."
At this point in your commentary, Mr. Mazzone, I cannot take you seriously. Ignoring the huge differences in openings, process, and attention surrounding Supreme Court appointments demonstrates you are not actually serious about evaluating whether this congress has been processing appellate and district court appointments in a timely fashion.
The commentary recommends that in order to fill more district court seats, the Senate should ignore the circuit court vacancies. This assumes that the failures of the Senate are due to a lack time or resources, not a willingness to cooperating in evaluating and voting on appointments.
I don't think there is any basis for making this assumption. Certainly none in this commentary or the next.
I'm somewhat more willing to take the him seriously, but to be blunt, I share some of mm's concerns. There is a certain lack of reality to some of the analysis. If the pig in the room isn't going to be faced, cleaning up the mess is that much harder. And, less serious.