Federal courts are facing a toxic mix of judges creating vacancies at an usually high rate and some Republican senators exploiting Senate traditions to prevent nominations in their states. And the Senate Judiciary Committee and Republican Conference leadership have aggressively slowed down confirmation of those nominations that make it to the Senate.*
The net effect is a sharp increase in vacant judgeships, putting additional strains on sitting judges, including those who have earned a right to a reduced workload. It mainly affects civil litigants, including small businesses, because of criminal cases’ statutory priority. In the final two years of the Reagan, Clinton and Bush two-term presidencies -- all with divided government -- vacancies decreased. That seems highly unlikely in these final two years of the Obama presidency.
The October 5 confirmation of a district judge reawakened complaints that seven confirmations in 2015 compare poorly to the 33 confirmations at the same point in 2007, George W. Bush’s seventh year in office.
In response, majority members of the Senate Judiciary Committee have said that the Senate, over the six-plus years of the Obama administration, has confirmed more judges than in the comparable period of the Bush administration.
That’s true -- as of October 5, 310 Obama confirmations versus 265 Bush confirmations.
They’ve also complained, as did Senator John Cornyn on the Senate floor on September 17 (repeating almost verbatim a July 30 floor statement by Judiciary Committee Chair Charles Grassley), that Senate Democrats confirmed 11 judges “at the end of last year.” (Actually, it was 12, on December 16, and most were unanimous.)
Leaving 11 nominations for confirmation in 2015, said Cornyn, would have put the Senate “roughly . . . on pace for judicial nominations this year compared to 2007.”
That’s only true with a tortured definition of “roughly on pace.” Eighteen is not “roughly” the same as 33. And those 33 confirmations in 2007 represent a 13.0 percent increase over the number on January 1, 2007. Even moving 11 confirmations from 2014 to 2015 would have produced only a 9.9 percent increase over the January 1, 2015, number.
More important, though, neither claim is particularly relevant. The ultimate purpose of the confirmation process is to fill vacant judgeships, not to create comparative confirmation scorecards.