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.
The other factor driving up the increase in district vacancies is out of the administration’s or the Senate’s control — a larger than usual number of vacancies created by judges’ leaving active judicial service for “senior status.” Ninety-two district judges went senior in Obama’s first three years, versus 72 and 70 in Clinton’s and Bush’s first three years. That fact alone could account for most of the net 24 district vacancies added from 2009 to 2011.
ONE CONSEQUENCE of the battles over judgeships is obvious — fewer judges to handle the courts’ dockets. In fact, the vacancy rate tells only part of the story. Since 1993 and the first year of the Clinton administration, Congress has increased the number of authorized, life-tenured district judgeships by eight percent, from 641 to 693. In that same period, district court civil and criminal filings have increased by 35 percent. The increase in appellate filings has been less dramatic, about 11 percent over the same time period, but Congress has added no circuit judgeships in that time — in fact, none since 1990.
There are likely more subtle consequences. For example, the proportion of state judges, and U.S. magistrate and bankruptcy judges, appointed as district judges has gone steadily up over the last half century. A fifth of Eisenhower’s district appointees were sitting judges. Almost half of Clinton’s and Bush’s district appointees were, and over half of Obama’s were. As summarized here, commentators have differed over whether this is or isn’t a good development, and suggested a host of likely causes.
One possible cause is longer times to confirmation. Three of Clinton’s 151 district appointees in his first three years waited over 180 days from nomination to confirmation. Fifty one of Obama’s 97 district nominees did so. A longer time in nomination limbo is not a problem for most sitting judges, who can continue to judge while they wait to see what the Senate will do. It is a problem, though, for lawyers, whose practices go on ice because clients shy away from counsel who may not be in for the duration. Some years ago, a lawyer could accept a district court nomination, realizing that confirmation was almost a sure thing and would come quickly. Today, confirmation is a bit iffier and the wait for a resolution can go on for many months.
CONFIRMATIONS WILL SLOW DOWN or stop early in 2012 — so goes the conventional wisdom — as Republicans anticipate the possibility of a White House, or Senate, takeover in 2013. A further fly in the ointment may be Republican resentment over the administration’s recent recess appointments of a handful of officials to long-standing vacancies in non-judicial positions — Republicans say the Senate wasn’t really in recess. (Senator Charles Grassley, the ranking Senate Judiciary Committee Republican, observed on January 23 that a district court confirmation vote was proceeding that day “only because this unanimous consent agreement was locked in before the President demonstrated his monarchy mentality by making those [recess] appointments.”)
The two previous administrations give a mixed record of what can happen in a presidential election year. In 1996, the Republican-controlled Senate confirmed 18 of Clinton’s district nominees (16 in July) and two circuit nominees (both in early January). In 2004, another Republican-controlled Senate confirmed 30 Bush district nominees (18 in June, and seven after June), and five circuit nominees (three in June). So there’s precedent for action well into a presidential election year.