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Judicial Openings

A piece in the LAT a few days ago noted that we have a situation in which a large number of federal judgeships remain unfilled, Legal logjam leaving judges’ seats empty in federal courts:

Almost one in eight federal judgeships is vacant in the country and legal scholars warn that the increasingly politicized confirmation process threatens the administration of justice across the nation.

Some of this is the result of slowness on the part of the administration:

Of the 102 federal judgeships open, there are nominees pending for 39 seats.

[…]

Obama has been taking longer to make nominations after learning of openings than did Bush, said Russell Wheeler, a Brookings Institution scholar who studies the selection of U.S. judges. Obama has taken an average of 325 days between vacancy to nomination, compared with 277 days for Bush. That might be explained in part, Wheeler said, by Obama’s decision to resume having the American Bar Assn. evaluate potential nominees — a practice abandoned by Bush.

Part of it is obstruction in the Senate:

Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.

[…]

what was previously a politicized practice of holding up nominees to the circuit courts of appeal has “spread like a virus to the district courts,” Wheeler said. Bush got 98% of his nominees to the federal trial courts approved at this stage in his administration, [Russell Wheeler, a Brookings Institution scholar] said.

Some of it is because other issues have had priority:

Judicial analysts also point out that Obama has already appointed two Supreme Court justices, nominations that consumed much of the time the Judiciary Committee might otherwise have devoted to considering lower-court nominees.

At a minimum, the process is not working as it ought and it does seem that the main problem is that the confirmation process over the years has become more about partisan politics and point-scoring (or score settling) than appropriately populating the bench.  And this is a problem for which both parties bear responsibility.

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About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. The consequences of this are pretty clear once you talk to people who practice in Federal Courts. Because criminal cases are, by law, given priority unless a Defendant has waived their right to a speedy trial, Civil cases typically languish for months if not years unless you have happen to be lucky enough to be in one of the few Districts that has adopted “rocket docket” procedures. (I spent 15 months several years ago waiting for a District Court Judge in DC to rule on a Motion to Dismiss, although since I was the Defendant’s attorney I didn’t really mind the delay all that much).

    It’s worse at the Court of Appeals level from what I’ve heard.

    The judges, and their clerks, are over-worked and, considering that most of them could leave the bench and earn high six-figure salaries as a partner at a big law firm, underpaid. At some point, we’re likely to see a wave of resignations that will just make it worse unless we fix the confirmation process.

     

     

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  2. PD Shaw says:

    One thing that needs accounted for is judges vacating their seat to go on “senior status,” which means the seat is vacant, but the judge is still working to the extent they wish.  That results in a wide discrepancy in what a vacant seat means, and possibly explains some of the delays.

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  3. mantis says:

    And this is a problem for which both parties bear responsibility.
    Cute.
    Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.
    The percentage approved for GWB was slightly higher than than for Clinton at this point in their presidencies, and <i>nearly double</i> that for Obama.  Explain exactly how this is both parties’ responsibility.

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  4. PD Shaw says:

    mantis, given that Obama is taking nearly 11 months to make his nominations, his approval rate at the 18 month mark could simply be a reflection of Obama taking longer to make his pick either though other priorities or a more rigorous screening process.

    I wish we had some better data, like average number of days between nomination and Senate vote.  I imagine it’s gone up, but it’s probably down from the last twelve months of the GWBush Presidency, when Democratic delay offered the opportunity of a Democratic nomination.

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  5. What this article doesn’t make clear is how many of the judgeships that remain unconfirmed or unappointed are District Court seats and how many are Court of Appeals seats.

    Typically, the process for appointing and confirming District Court Judges has been fairly congenial. The Senators from the state in question will submit a short list of nominees to the White House, and the choice is made from there. For the most part, District Court Judges are confirmed rather easily.

    The fight over the Court of Appeals judges is more contentious, for obvious reasons.

    Does anyone know how these figures break down ? If there are District Court seats being held up, then that would indicate the whole judicial nomination process in the Senate is breaking down.

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  6. @Mantis:  there has been a long-term trend on the part of both parties to use the various blocking mechanisms of the Senate to slow, if not stop altogether, nominations.  Yes, the problems is becoming more acute and yes, the GOP has a great deal of responsibility in regards to that.  However, it is impossible to look back over the last decade and say this is just an issue for the Reps.

    @PD:  If I am reading the piece correctly, the success rate has to do with nominations submitted, and therefore has nothing to do with names not submitted because of the slowness of the administration./

    @Doug:  The article indicates that this problem has substantially crept into District Court nominations, although there is no clear breakdown by type of vacancy that I noted.

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  7. PD Shaw says:

    @Steve:  Yes, the success rate is being calculated as a percantage of nominations. 

    But since the measure is at the 18 month time period, it makes a big difference if the nominee is appointed at the 17th month or the 9th month.  According to this link, the average period of time for the Senate to vote on a nominee in 1997 was 6 months.

    http://books.google.com/books?id=7RNgmWnH7KUC&pg=PA27644&lpg=PA27644&dq=average+days+for+senate+to+vote+judicial+nominee&source=bl&ots=sByBPz0gY3&sig=bgRrudmZMkxv5uYDcKZruoW3Uik&hl=en&ei=hn6GTIOiGd_hnQePhuXYAQ&sa=X&oi=book_result&ct=result&resnum=2&ved=0CBUQ6AEwAQ#v=onepage&q=average%20days%20for%20senate%20to%20vote%20judicial%20nominee&f=false

    So, if it takes the Senate 6 months on average, the more nominees being named after the first year, the lower the approval rate.

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  8. PD Shaw says:

    Yikes, that’s one ugly looking link.

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  9. PD Shaw says:

    This is what I was looking for:

    “Obama’s nominees for federal circuit judges are waiting an average of 116 days for confirmation after winning committee approval, more than four times as long as those during a similar period of Bush’s presidency.
    The wait for district court judges . . . is only somewhat better. Obama’s nominees take 58 days to be approved, compared with 25 days under Bush, according to congressional records.”

    http://www.boston.com/news/nation/washington/articles/2010/06/22/senators_want_to_end_secret_holds_that_let_nominees_languish/

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  10. mantis says:

    @Mantis:  there has been a long-term trend on the part of both parties to use the various blocking mechanisms of the Senate to slow, if not stop altogether, nominations.  Yes, the problems is becoming more acute and yes, the GOP has a great deal of responsibility in regards to that.  However, it is impossible to look back over the last decade and say this is just an issue for the Reps.
    How much of a difference do you need to conclude that your data are not part of a continuing trend, but of a new phenomenon?  It’s as if you were looking at a chart with a steady incremental increases, followed by a huge spike, and you attribute the spike to the ongoing, obviously disparate trend.  The problem isn’t “becoming more acute,” it has already exploded, and the decision to block nominations wholesale, as opposed to obstructing those of a handful of “problem” nominees, is new and entirely the responsibility of one party.

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  11. mike says:

    Okay, I will throw my name out there for nomination. Good pay and appointment for life. I will suffer for the good of the country.

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