diversity of federal bench

by Jeremy Leaming

Hardly shocking is the report from the Brookings Institution’s Russell Wheeler that shows vacancies on the federal bench have jumped during President Obama’s tenure.

As Senate Judiciary Chairman Patrick Leahy has noted time and again, obstruction in the Senate of judicial selections has intensified. (At the end of December, as Congress was leaving town, Leahy said in a press statement that for the “last three years, dozens of judicial nominations have been delayed in the Senate. In fact, nearly 20 judicial nominations pending and stalled before the Senate should be confirmed when the body resumes session in January. This would lower the current number of vacancies by nearly 25 percent. The Senate has a constitutional responsibility to provide its advice and consent in the confirmation of federal judges. Only then can the judiciary fulfill its own constitutional role.”)

As it stands now, according to JudicialNominations.org, there are 85 vacancies on the federal bench, and caseloads are growing.

Wheeler’s report, however, is not focused on assigning blame. Instead it provides a detailed examination of the Obama administration’s efforts to shape the federal bench, in part, by drawing comparisons with Obama’s predecessors at similar times in their presidencies.

For example, compared with Presidents Bill Clinton and George W. Bush, Obama has made fewer nominations to the district court. But as The Wall Street Journal Law Blog’s Joe Palazzolo notes, “Obama is also dealing with a surge of judges taking senior status (92 in the first three years, compared to 72 and 70 in the same periods in the administrations of Clinton and Bush) and the Senate has confirmed a lower percentage of Obama’s nominees, according to Wheeler.”

Moreover, the time for attaining confirmation has by “almost all measures … gotten progressively longer – by average days or median days,” Wheeler reports. The president’s nominees, he shows, have gotten hearings before the Senate Judiciary Committee in a quicker fashion, but “have waited, longer, overall for confirmation.”

One bright spot in the judicial nominations process centers on the diversity of nominees. Wheeler, like others, notes that Obama has “appointed record proportions of non-white males.”

He continues:

All of Dwight Eisenhower’s district and circuit appointees were white males. For the Kennedy Johnson administration, the figure fell to 93 per cent, for Carter to 66 percent, up to 86 percent under Reagan, 53 percent under Clinton, 66 percent under Bush2, and 38 percent under Obama.

Appointments of Asian-Americans have been especially noticeable. Of the 24 appointments of Asian Americans to federal district and circuit judgeships in total, Obama has made eight – and three Asian-American nominees are awaiting Senate action.

An attempt, however, at providing much needed diversity to the bench remains ensnared in Senate obstructionism.

Andrew Cohen, of the Atlantic, has written, on numerous occasions, about the nomination of Arvo Mikkanen to a federal judgeship in Oklahoma. Mikkanen, an American Indian, was nominated to the seat well over a year ago, but his nomination has been stalled by Sen. Tom Coburn, who has given no indication as to why he is blocking the nomination. He’s only said, as Cohen notes, that he knows plenty about the nominee.

by Jeremy Leaming

President Obama’s efforts to place judges on the federal bench, as noted frequently on this blog, have faced unprecedented obstruction in the Senate. Earlier this week when senators left town for an August recess, after spending practically all their time on the debt-ceiling debacle, they only confirmed four of the 24 judicial nominees who were ready for a Senate vote.

One bright spot in the judicial nominations process, NPR notes, is the administration’s efforts to diversify a federal bench that is still largely dominated by white men. At least it’s a bright spot for progressives. (Right-wing blogger and former attorney in President George W. Bush’s Department of Justice Ed Whelan got plenty of airtime on NPR to belittle the administration’s efforts to enrich the federal courts.)

ACS Executive Director Caroline Fredrickson, who has lauded the administration’s drive to diversify a monolithic bench, told NPR that too many of the diverse nominees are facing an uphill battle in the Senate.

“For women and minorities,” Fredrickson said, “it’s just been a bigger hill to climb before they actually get a vote. And so for whatever the reasons, the facts speak for themselves.”

The NPR piece notes, “Some of the longest waiting nominees, Louis Butler of Wisconsin, Charles Bernard Day of Maryland and Edward Dumont of Washington happen to be black or openly gay.”

Earlier this summer, not long after the Senate filibustered Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit, Fredrickson pointed out that Liu, a UC Berkeley law school professor, and former ACS Board Chair, “would have enriched our federal bench.”

“Of the 160 active judges on the federal court of appeals,” Fredrickson said, “there is not one active Asian Pacific American judge on the Ninth Circuit.” (Liu was recently nominated to the California Supreme Court.)   

Robert Raben, president and founder of The Raben Group, and also a member of the ACS Board, praised the administration for, “Promises made, promises kept.” He said the president and “his team” are committed to diversifying the federal courts, “and they get an A-plus on that.”

Audio of the NPR story is available here. For more information on the rising number of vacancies on the federal bench, and status of judicial nominees, see JudicialNominations.org.