Russell Wheeler

  • May 22, 2013

    by Russell Wheeler, Visiting Fellow, Governance Studies, The Brookings Institution

    The U.S. Court of Appeals for the District of Columbia Circuit (CA-DC for short) has more vacancies, and a greater proportion of vacancies to judgeships, than any other federal appellate court. Appointees of President George W. Bush or his father hold four of the court’s 11 judgeships, and appointees of President Clinton hold three. Six senior judges, all but one Republican appointees, are on the draw but able to take reduced caseloads.

    Senate Republicans and their press allies believe the status quo is basically fine. They refused to allow a vote on one Obama nominee, Caitlin Halligan, bowing to National Rifle Association claims that she’s too liberal to serve in the federal judiciary. They appear willing to allow a vote on a second Obama nominee, the very capable Srikanth Srinivasan, who has served in both the Bush and Obama Justice Departments.

    But, they say, Srinivasan is enough. Why? The reason most commonly offered is that CA-DC doesn’t need more judges because it has a light caseload. Ranking Senate Judiciary Committee member Charles Grassley said, correctly, that its 108 filings per judgeship in 2012 was lowest in the country.

    Others respond, just as correctly, that raw filings hardly tell the whole story of a court’s workload. It’s impossible to compare accurately the workloads of the 13 courts of appeals because the federal judiciary has developed no accurate way to “weight” different case types in those courts—as compared to the fairly sophisticated method for weighting district court caseloads.

    But there is no doubt that CA-DC has a heavy docket of appeals from decisions of federal administrative agencies, appeals that do not benefit from initial review in the district courts. Former CA-DC chief judge Patricia Wald recently described them as “the most complex, time-consuming, labyrinthine disputes over regulations. . .cases [that] require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.”

  • January 30, 2013
    Guest Post

    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.

  • January 28, 2013

    by Jeremy Leaming

    Nearly a week after providing a staunchly liberal vision for a second term –– leading law professors, attorneys and other advocates are providing via an ACS project ideas and proposals for the administration’s second term. (Regarding the tone and vision of the president’s second Inaugural Address, some apparently believe the president was merely defending New Deal programs and policy the Clinton administration had supposedly advanced.)

    The ACS project, “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” was recently launched with three Issue Briefs:

    Former U.S. Pardon Attorney Margaret Colgate Love looks at why the presidential pardon power “has lost its vigor, its integrity, and its sense of purpose,” and argues why it should be reinvigorated, as well as offering examples, many from the states, for reforming the process.

    Brookings Visiting Fellow Russell Wheeler examines the Obama administration’s record of filling federal judgeships during his first term and puts forth ideas for fixing a judicial nominations process that has become increasingly rancorous and ineffective. In a Brookings’ Up Frontblog post, Wheeler, a leading expert on the federal bench, explains, in part, why the process needs reforming. “First, judicial vacancies, which declined in Clinton’s and Bush’s first terms, increased during Obama’s. Empty judgeships hamper the federal courts’ ability to do their jobs – to sort out contractual disputes and other matters that, left unresolved, contribute to economic uncertainty, as well dispose of criminal complaints and adjudicate claims of discrimination and civil liberties violations.”

    University of Michigan Law School Professor David M. Uhlmann urges the Obama administration to exert great presidential leadership on climate change. Uhlmann, director of the law school’s Environmental Law and Policy Program, noted the small steps the Obama administration took during its first term. But, citing the work of climate scientists, Uhlmann warns that if our country fails “to limit greenhouse gas emissions, searing heat, widespread drought, destructive storms, and massive flooding will become commonplace.” Moreover, Uhlmann argues that climate change will be a “legacy issue” for the president – “either because he helped chart a course toward a sustainable future or because America failed to act while it was still possible to prevent catastrophic climate change. Uhlmann’s Issue Brief goes on to provide ways for the president to act, even without the help of Congress, to put the nation on a path toward sustainable resources.

    During his second inaugural, the president reminded us that “preserving our individual freedoms ultimately requires collective action” and unlike too many of his predecessors lauded the noble goal of advancing equality. Obama also took a shot at right-wing economic policy that is all about coddling the superwealthy at the expense of everyone else.

    The president also called for collective action on climate change.

  • April 6, 2012

    by Jonathan Arogeti

    “President Obama’s judges have shattered barriers across the country,” writes Senior Counsel to the President Christopher Kang.

    In a post titled, “Federal Judges That Resemble the Nation They Serve,” Kang notes that the president has doubled the number of Asian American and Pacific Islander federal judges over the past three years.

    The Senate recently confirmed Miranda Du to the U.S. District Court for the District of Nevada, albeit after dragging the process out for 239 days. Judge Du (pictured with Sen. Reid) is the 16th Asian American and Pacific Islander judge in the country. But despite support by Nevada Republican Sen. Dean Heller, Republican Governor Brian Sandoval, Republican Lieutenant Governor Brian Krolicki and Republican Mayor of Reno Robert Cashell -- in addition to support of Obama and Sen. Harry Reid (D-Nev.) -- only five Republican senators joined Sens. Reid and Heller in her confirmation vote.

    President Obama’s commitment to diversifying the federal bench was explored in a report issued earlier this year by the Brookings Institution. Russell Wheeler, the report’s author, highlights that only 38 percent of the president’s nominees are white males. That figure contrasts with a 66 percent rate under President George W. Bush and a 53 percent rate under President Bill Clinton.

  • January 18, 2012

    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, 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.