Judicial Vacancies

by Russell Wheeler, Visiting Fellow, The Brookings Institution

My recent ACS Issues Brief was not overly optimistic about the likely efficacy of various proposals to speed the nomination and confirmation of district and circuit judges in President Obama’s second term. Any significant changes, for that matter, stand little chance of adoption in the midst of contentious confirmation battles.

A modest change to Senate procedures, though, adopted after the Brief was prepared, may shorten the time between district nominees’ Judiciary Committee hearings and any floor votes to confirm the nominations.

Judicial nomination processing times in Obama’s first term increased substantially over those in the first terms of Presidents Clinton and Bush -- 223 days on average from nomination to confirmation for district judges, compared to 93 days for Clinton’s first term district appointees and 155 for Bush’s. And unlike in the Clinton and Bush first terms, the bulk of the time that Obama’s appointees waited came after their Judiciary Committee hearings. Once Clinton’s appointees got hearings, they waited only 30 days for their confirmation votes. Bush’s district appointees waited 54 days. Obama’s first term district appointees, by contrast, waited an average of 142 days.

Near-eight month average wait times from nomination to confirmation have several deleterious effects, especially when combined with the over a year wait time on average between the vacancy (or its announcement) and the nomination. For one thing, obviously, a vacant judgeship is not a productive judgeship. Moreover the time potential nominees wait as senators and the White House jostle over whom to nominate, and the time actual nominees spend waiting for hearings and floor votes, can put their professional lives in limbo. Potential clients will be wary of signing on with a lawyer who’s being talked about for a judgeship, much less one whose nomination is before the Senate. Even state judges, term-limited federal judges, and government and public defender lawyers may be reluctant to become the object of extended delay and public speculation. In short, the nomination and confirmation process discourages some quality potential judges from putting themselves forward as candidates and thus serves itself as a barrier to filling vacancies.

by Jeremy Leaming

The Republican effort to avoid filling judicial vacancies in the hopes of gaining more political power in November continues unabated, but not without justifiably sharp criticism.

Senate Republicans’ agenda of obstructing everything Obama may be simple and nakedly political, but obstruction of judicial nominations is also disastrous for the nation’s court system. The Senate left town with more than 75 vacancies on the federal bench, many of them deemed emergency vacancies by the Administrative Office of the U.S. Courts of the federal bench.   

Last week the Republicans blocked Sen. Majority Leader Harry Reid’s effort to force votes on 17 district court nominations, and left town for a recess after confirming only two. The Senate confirmed Gonzalo Curiel for a seat on the U.S. District Court for the Southern District of California and Robert Shelby to fill a vacancy on the U.S. District Court for the District of Utah. Both nominees were recommended for confirmation by the Senate Judiciary Committee about five months ago.

In a press release, containing a list of pending nominations and a lengthy statement, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) blasted the Republicans’ intransigence. The obstruction of the judicial nominations is yet another example of “Senate Republicans putting partisanship ahead of the interests of the American people,” Leahy said. “I have served in the Senate for 37 years, and I have never seen so many judicial nominees, reported with bipartisan support, be denied a simple up-or-down voter for four months, five months, six months, even 11 months.”