Private: Judicial Nominations in 2011: A Review

by Jonathan Arogeti

Last year ended with 100 current and future vacancies on our judiciary, an alarmingly high rate that has persisted for more than two years now. As documented by a recent Brookings Institution report, the number of district court vacancies has “starkly” increased since the beginning of President Barack Obama’s term. Senate obstruction reached new levels this year, with filibusters of nominees who once would have been considered widely noncontroversial. One bright spot, however, was President Obama’s significant progress in diversifying the federal courts. A mid-year White House infographic on the state of judicial nominations reinforced these themes. Below are highlights from last year in judicial nominations.

The crisis.

• Last year ended with 30 seats that the Administrative Office of the U.S. Courts deemed judicial emergencies on the federal courts.
• Delays caused by judicial vacancies have sparked, in the words of Chief Justice John Roberts on the eve of 2011, “acute difficulties” for districts “burdened with extraordinary caseloads.”
• Between Sept. 2010 and Sept. 2011, nearly 15 percent of civil cases in the district courts are forced to wait more than three years for a resolution. And during the same period, the average time for a civil litigant’s jury trial was more than 24 months.
• Chief Judge Roslyn O. Silver of the U.S. District Court for the District of Arizona declared a judicial emergency at the onset of the year because of an “acute shortage of judges” in her district.
• Chief Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida said the vacancies cause an “undue hardship” on his district and Chief Judge Wiley Y. Daniel of the U.S. District Court for the District of Colorado said the vacancies are “impeding” the judicial process.
• And the caseloads in both circuit- and district-level federal courts so overwhelmed their active judges, that many were forced to rely heavily on senior judges. Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit warned at the ACS 10th Anniversary National Convention that at this pace, the work of the federal bench will soon be left primarily to octogenarians.
• A special CNN report documents how the “massive nominee logjam” is having a “staggering” impact on the American people. And an article in The Wall Street Journal details how the backlog is forcing some plaintiffs to wait years for their day in court. In Denver, for example, the newspaper chronicles Amy Bullock’s two-and-a-half-year ordeal -- twice postponed -- to receive damages from her husband’s death in a 2006 truck accident.

Senate obstruction.

• Despite last year starting out with 114 current and future vacancies and an escalation in Senate obstruction the previous year, the tide appeared to be turning:
  • The chief justice lamented the obstruction in the Senate of judicial nominees in his year-end report.
  • Senate leaders announced in January a “bipartisan agreement” they claimed would remove some tactics used to slow work in the Senate
  • And then-White House Counsel Bob Bauer reiterated the Obama administration’s commitment to fill empty judicial seats at an ACS event in February.
• However, between January and April, the Senate only confirmed 19 nominees.
• The Senate finally confirmed John McConnell in May to the U.S. District Court for the District of Rhode Island following a Republican filibuster. Languishing for more than a year, Rhode Island Sens. Jack Reed and Sheldon Whitehouse herded the nomination through.
• The Senate subsequently confirmed Edward Chen to the U.S. District Court of the Northern District of California after almost two years in confirmation limbo. With this second vote separated by less than one week, the Senate appeared to have finally restored a sense of normalcy to the confirmation process.
• While it appeared as if the confirmation of Judges McConnell and Chen had restored the long-held Senate tradition of not filibustering the president’s district court nominees, the Senate soon returned to obstructing them in the same manner of Clinton and Bush’s circuit court nominees.
• Not more than two weeks after McConnell and Chen’s confirmations, the Republicans filibustered the confirmation of Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit; Liu would have been the court’s only Asian American judge. All four of the remaining Republicans from the 2005 Gang of 14, who agreed to block nominees only in “extraordinary circumstances,” voted against giving his nomination an up-or-down vote.
• And nearly six months later, the same four Republicans senators joined all but one of their colleagues to filibuster the December confirmation of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit.
• Further slowing down the process, Sen. Charles Grassley (R-Iowa) demanded from Sen. Patrick Leahy (D-Vt.) that the Senate Judiciary Committee drastically slow its committee work for last year’s final weeks, holding just one nomination hearing in the entire month of December. All the while, Leahy has continued to call out obstruction by some Senate Republicans of the nominations process.
• Just before the Senate went into winter recess, 45 nominees were awaiting action either by the full body or the judiciary committee, including the eight nominees the Senate returned to the president. But Sen. Mitch McConnell (R-Ky.) blocked votes on all 21 judicial nominees that were ready for an immediate up-or-down vote.
  • The eight who were sent back to the president include Victoria Nourse, who reportedly has now withdrawn her name from consideration, and Arvo Mikkanen, who has been subjected to unexplained obstruction by Sen. Tom Coburn (R-Okla.).
• Even an effort to reduce the strain on the federal judiciary by adding judgeships faltered. In October, the Senate Judiciary Committee passed the Emergency Judicial Relief Act, but here, too, Grassley indicated that he would object to bringing it up on the Senate floor, effectively killing an effort to create judgeships in districts, including in the abovementioned District of Arizona, with bursting caseloads.
• With the unprecedented obstruction, critics spoke out.
  • The American Bar Association sent two letters to Sens. Harry Reid (D-Nev.) and McConnell, one in July and another in October, imploring them to solve the crisis.
  • Others who have spoken out this year include Justice Ruth Bader Ginsburg, Attorney General Eric Holder, and editorial boards around the country.
  • The Atlantic’s Andrew Cohen calls the obstruction “maddening,” while The Washington Post calls it “insidious use of judicial nominees as political pawns,” and earlier, says the “gamesmanship” is “not only frustrating but also destructive.”
  • In a bipartisan call for reform in November, Professors Michael Gerhardt and Richard Painter offered a plan to expedite the nomination process in an ACS Issue Brief. Following the failed Halligan nomination, even more calls continued.

Diversity.

• In spite of Senate obstruction, Obama has had remarkable success in diversifying the bench.
• Nearly 60 percent of last year’s confirmed judges and nearly two-thirds of all the judges confirmed during the Obama administration have been minorities. Among the noteworthy statistics:
  • 42.7 percent of all confirmed judges are women compared to an 18.9 percent average for Obama’s last five predecessors
  • 38.1 percent are non-white compared to a 16.5 percent average for Obama’s predecessors
  • And 1.6 percent are sexual minorities compared to a grand total of just one for all five predecessors.
• Obama continued to achieve a series of firsts this year, nominating the first African American woman to the U.S. Court of Appeals for the Sixth Circuit and the first openly gay man, and he was the first president to nominate more than one openly gay nominee. He has accumulated a similar record throughout his presidency.
• Nevertheless, a November New York Times article revealed that obstacles persist in confirming minorities to the bench. The newspaper reported that the American Bar Association, in its role rating the qualifications of judicial nominees, disproportionately rated minority candidates “not qualified” -- just one of 14 such candidates was a white male. And reports have noted that obstruction disproportionately affects these minorities.

For year-round information, see JudicialNominations.org.

Importance of the Courts, Judicial Selection