Study Confirms Jump in Federal Court Vacancies; Diversity of Nominees a Bright Spot

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.

In a Jan. 16 article for the Atlantic, Cohen compares the obstruction of Mikkanen’s nomination to another of Obama’s nominees, federal magistrate Patty Shwartz. Shwartz’s nomination garnered plenty of attention – The New York Times devoted front-page space to the story -- partly because the obstruction was produced by a member of the president’s own Party, Sen. Robert Menendez. At first the senator would not comment on why he was holding up Shwartz’s nomination. But, as Cohen writes, initial media reports “suggested that Menendez’s opposition to Shwartz had more to do with the magistrate’s personal relationship with a federal prosecutor who had led a 2006 corruption investigation into Menendez.”

Responding to those suggestions, Menendez issued a statement that after a meeting with the magistrate, he was concerned that she “did not express substantive knowledge as to the scope of the rights of corporations under the Constitution or jurisprudence on the constitutional limits of executive branch powers.”

After meeting for a second time with Shwartz, who had received the American Bar Association’s highest rating, the senator said he would no longer block the nomination.

But Coburn continues stalling Mikkanen’s nomination, with no explanation.

Cohen writes:

Is it because Mikkanen is a Native American, who would be only the third recorded American Indian federal judge in the 222-year old history of the judiciary? It is because Mikkanen went to Dartmouth and Yale Law School? Is it because he clerked for two federal judges or has long been a member of the U.S. Attorney’s Office? Is it because of his affiliation with the Oklahoma Indian Bar Association? Or perhaps it has something to do with the fact that Mikkanen is the former Chief Justice of the Supreme Court of the Cheyenne-Arapaho Tribes?

Cohen proposes a gathering that he’d be happy to host:

The Menendez-Shwartz story is one of redemption and of getting, ultimately, to the right answer. This ought to happen here, too. Coburn owes Arvo Mikkanen an explanation, the White House owes him a defense, and the Senate Judiciary Committee owes him a hearing. Moreover, the American people, and especially the people of Tulsa, deserve to know why their elected officials cannot fill that long-standing judicial vacancy with a guy like Mikkanen. It's time to get the principals together to do what's right. Let's break bread, Menendez-style.