Sen. Mike Lee (R-Utah) threatened to escalate Republican obstruction of judicial nominees this week by saying he would block every single nominee unless Richard Cordray is removed as director of the Consumer Financial Protection Bureau. President Obama issued a sharp response during his weekly address Saturday, saying, “One senator gumming up the works for the whole country is certainly not what our Founding Fathers envisioned.” During his remarks, Obama reiterated his proposal from the State of the Union address that the Senate hold up-or-down votes on all nominees within 90 days.
The Senate Judiciary considered Paul J. Watford’s nomination to the U.S. Court of Appeals for the Ninth Circuit. After a party line committee vote, his nomination now proceeds to the Senate floor.
President Obama continued to send names to the Senate for confirmation to the federal bench, nominating Stephanie Marie Rose to the U.S. District Court for the Southern District of Iowa and Michael P. Shea to the U.S. District Court for the District of Connecticut.
And in an attempt to move the nominations process forward for two judicial emergencies in Georgia, the state’s two Republican senators told the White House this week which potential nominees they would support, The Atlanta Journal Constitution reports.
By Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program
The judicial confirmation arena has been a battleground during the Obama administration, as it was during the Clinton and Bush administrations (described at greater length in a recent Brookings post from which this post is drawn).
CONFIRMATION RATES were in the 90 percent range for court of appeals nominees in the 1970s and 1980s but deteriorated in the Clinton and Bush administrations to the low 70 percent range. The Senate, by the end of 2011, had confirmed 67 percent of Obama circuit nominees — although excluding post-July 2011 nominees from the mix raises the rate to 81 percent. The circuit confirmation rate by the end of Obama’s current term is likely to be closer to 67 than 81 percent.
District confirmations, on the other hand, hovered around the 90 percent mark through the W. Bush administration, but stand now at 73 percent for the Obama administration — 83 percent for pre-August 2011 nominees.
DISTRICT COURT VACANCIES, due in part to the comparatively low confirmation rate, have increased during the Obama administration — from 41 in January 2009 to 67 at the end of December 2011. By contrast, district court vacancies fell sharply during the first three years of the Clinton and Bush administrations. Obama has held circuit vacancies fairly steady, as did Clinton, although they decreased during Bush’s first three years.
The increase in district vacancies during the Obama administration has two drivers besides the confirmation rate. One is the comparatively low number of nominees submitted — 133 by the end of 2011, versus 179 and 165 at the end of Clinton’s and Bush’s first three years. The low number of nominations has exasperated liberals who looked to Obama to offset the results of the Bush administration’s determined judicial nomination strategy. Their only consolation is that the pace of nominations has picked up since the slow start in 2001.
In the face of continued opposition to filling judicial and other vacancies, President Obama reiterated in his weekly address an urgent call for the Senate to cease with the delays and get to work considering and confirming his nominations.
Although not citing him by name, Obama alluded to Utah Sen. Mike Lee’s recent comments that he planned to stall all of the president’s nominations because of his recess appointments of Richard Cordray to lead the Consumer Financial Protection Bureau and three members to the National Labor Relations Board. Politico reported last week that aides to the senator said “the tea-party favorite could bog down the confirmation process by filibustering and forcing a 60-vote threshold for each nominee.”
During his Jan. 28 address, the president said, “one of the senator’s aides told reporters that the senator plans to, and I’m quoting here, ‘Delay and slow the process in order to get the President’s attention.’”
Obama continued, “Well this isn’t about me. We weren’t sent here to wage perpetual political campaigns against each other. We were sent to serve the American people. And they deserve better than gridlock and games. One senator gumming up the whole works for the entire country is certainly not what our founding fathers envisioned.”
As he did during his State of the Union Address, the president said it’s long past time for the foot-dragging on nominations to stop, and urged both parties to pass “a rule that allows all judicial and public service nominations a simple up-or-down vote within 90 days.”
In President Obama’s State of the Union address, the president called for reform to the nominations process for judicial and other public service nominees. “Some of what’s broken has to do with the way Congress does its business these days,” Obama said. “... I ask the Senate to pass a rule that all judicial and public service nominations receive a simple up or down vote within 90 days.” Following the address, Senate Majority Leader Harry Reid (D-Nev.) endorsed President Obama’s proposed rule change, but he suggested that Supreme Court nominees might be an exception.
Pursuant to an agreement reached before the winter recess, the Senate voted to confirm John M. Gerrard to the U.S. District Court for the District of Nebraska by a vote of 74-16. In an op-ed in the Omaha World Herald, Nebraska U.S. District Judge Richard G. Kopf praised his state’s Democratic and Republican senators for working together to push through Gerrard’s nomination in the face of opposition, calling their efforts a “template for those like me who wish to return to a time when the selection of federal judges was guided by seasoned politicians.”
This confirmation, however, may be the last in the near future, as Republicans are weighing retaliation against President Obama for recess appointing four executive branch nominees, Bloomberg reports. “Retaliation against judicial nominees may make it harder for Obama to reduce the 80 vacancies on the federal bench at the end of 2011, or 25 more than when he took office,” the article notes, crediting Brookings Institution scholar Russell Wheeler. Sen. Mike Lee (R-Utah) appears single-handedly poised to block all movement on judicial nominations, saying in a hearing, “I find myself duty-bound to resist the consideration and approval of additional nominations until the president takes steps to remedy the situation.”
Unmoved, the president submitted three nominations to the federal judiciary. He nominated Robert E. Bacharach to the U.S. Court of Appeals for the Tenth Circuit, William J. Kayatta, Jr. to the U.S. Court of Appeals for the First Circuit and Michael A. Shipp to the U.S. District Court for the District of New Jersey.
Last year ended with 100 current and future vacancies on our judiciary, an alarmingly high rate that has persisted for more than two years now. As documented by a recent Brookings Institution report, the number of district court vacancies has “starkly” increased since the beginning of President Barack Obama’s term. Senate obstruction reached new levels this year, with filibusters of nominees who once would have been considered widely noncontroversial. One bright spot, however, was President Obama’s significant progress in diversifying the federal courts. A mid-year White House infographic on the state of judicial nominations reinforced these themes. Below are highlights from last year in judicial nominations.
Last year ended with 30 seats that the Administrative Office of the U.S. Courts deemed judicial emergencies on the federal courts.
Between Sept. 2010 and Sept. 2011, nearly 15 percent of civil cases in the district courts are forced to wait more than three years for a resolution. And during the same period, the average time for a civil litigant’s jury trial was more than 24 months.
Chief Judge Roslyn O. Silver of the U.S. District Court for the District of Arizona declared a judicial emergency at the onset of the year because of an “acute shortage of judges” in her district.
Chief Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida said the vacancies cause an “undue hardship” on his district and Chief Judge Wiley Y. Daniel of the U.S. District Court for the District of Colorado said the vacancies are “impeding” the judicial process.
And the caseloads in both circuit- and district-level federal courts so overwhelmed their active judges, that many were forced to rely heavily on senior judges. Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit warned at the ACS 10th Anniversary National Convention that at this pace, the work of the federal bench will soon be left primarily to octogenarians.
A special CNN report documents how the “massive nominee logjam” is having a “staggering” impact on the American people. And an article in The Wall Street Journal details how the backlog is forcing some plaintiffs to wait years for their day in court. In Denver, for example, the newspaper chronicles Amy Bullock’s two-and-a-half-year ordeal -- twice postponed -- to receive damages from her husband’s death in a 2006 truck accident.