Judicial Nominations Languish During Month-Long Recess, Press Takes Notice

August 8, 2011

by Nicole Flatow

The alarming number of federal court vacancies left behind during Congress’s month-long August recess continues to garner media coverage, including two stories published inThe New York Times this weekend.

One story in The Times focuses on President Obama’s diverse judicial nominees and the Senate’s delay in confirming these candidates, continuing the momentum of recent coverage of this issue by NPR, Politico, Roll Call and The Wall Street Journal Law Blog.

"Obama is nominating many more diverse nominees than his predecessors ... strikingly so," American Constitution Society Executive Director Caroline Fredrickson told NPR. "But the nominees are not getting confirmed with the same kind of success."

In a second article in The New York Times Magazine about the dynamic between Supreme Court justices, Emily Bazelon highlights the issue of federal judicial nominations, noting that the federal bench has “had more than 80 vacancies for more than two years, a historical record.”

She writes:

In the last quarter century, the pool of possible Supreme Court justices has generally come from the federal appeals courts. Obama broke that mold by selecting Kagan, then his solicitor general, partly because they were ideologically simpatico, but also for a more dispiriting reason: Democrats simply don’t have many federal appellate judges to choose from. Particularly young ones. Since 1981, [University of Southern California law professor Richard] Epstein says, Republicans have appointed 41 federal appellate judges under age 45 to the Democrats’ 10. Bush placed 13 judges in this group. Obama, so far, has zero.

In The Atlantic, Andrew Cohen points to the Senate’s failure to confirm judicial nominees as an “example of the gross negligence of the legislative branch.”

“While Congress was voting on which post offices to name -- surely one of the most pathetic gestures ever offered by this generation of lawmakers-- the judicial nominees were languishing on hold,” he writes. “Not because they aren't worthy. Not because they lack bipartisan support. But because of the threat of a Republican filibuster, a way for politicians to justify their partisan choices in the guise of arcane legislative rules. All over the country there are ‘judicial emergencies’ brought on by the nation's empty benches. And yet the Senate does nothing.”

Cohen reposts a chart from JudicialNominations.org showing that only 89 judicial nominees have been confirmed under President Obama, as compared to 139 under George W. Bush and 152 under Bill Clinton in the same period of time.

More statistics, recent news and other resources about the judicial vacancy crisis are available at the JudicialNominations.org, a website of the American Constitution Society.