Alliance for Justice (AFJ) reports that President Barack Obama will likely finish his first term with many more vacancies in the federal judiciary than when he was inaugurated. Today, seventy-five seats on the federal bench remain open, compared with fifty-three in January 2009. The shortage of judges has generated a backlog such that approximately thirty courts have been officially designated as being in a state of “judicial emergency”—that is, more cases per judge than he or she can handle fairly and efficiently—compared with only eighteen in 2009, thereby leaving important issues of law unsettled and many injuries unredressed.
Only 80 percent of the president’s district and circuit court nominees have been confirmed by the Senate. In comparable periods in their presidencies, George W. Bush and Bill Clinton had confirmation records of 90 percent and 84 percent, respectively. Obama has also nominated fewer judges and done so much later than Bush or Clinton did during their first terms.
As a result of the White House’s laggardness, right-wing justices continue to dominate the federal courts—meaning that many of Obama’s most important legislative achievements could be eviscerated and his legacy dissipated, because most of the circuit courts of appeal are controlled by Republican appointees.
Republican obstructionism bears a large share of the blame for the situation, but Obama’s reluctance to expend political capital fighting for nominees is also at fault.
The GOP foot-dragging began with Obama’s first nominations. The Republicans have taken advantage of senatorial courtesy, which requires that both home-state senators, regardless of party, consent to a nomination. Republican senators have delayed committee hearings by taking an inordinately long time giving their consent, and in some cases have simply refused it.
Committee proceedings have also been slowed down. In the past the committee processed district judges quickly, often in groups. Republicans now insist on close individual scrutiny of every district court nominee, slowing the process even more.
But it is on the Senate floor that the GOP’s obstructionist tactics have gone into high gear. Much of the upper chamber’s business is carried on by unanimous consent agreements, and Republicans have repeatedly balked at giving unanimous consent to take up judicial nominations. Secret and public holds, filibusters, and thirty-hour “debates,” if cloture is voted, further slow down the process. Many nominations unanimously or overwhelmingly approved in committee have languished on the floor for months; when the vote finally comes, it is usually overwhelmingly for approval, often by voice vote.
Obama’s response to these GOP tactics has been weak and ineffectual. First, he has failed to send up enough nominees. Second, he has neglected to think and act strategically with respect to those he has nominated. The lack of strategic thinking is reflected in the philosophy and relative age of Obama’s judges. Where the Republicans made sure to appoint solidly conservative judges who would serve for many decades, Obama has focused on finding nonideological or middle-of-the-road candidates. Three-quarters of his circuit court nominees are former prosecutors, and a very large proportion are or were in private practice; many of the latter are millionaires. Only a handful are or have been legal aid lawyers, public defenders or public interest lawyers; few have been politically active. Public interest lawyers in the Fourth Circuit, for example, which has a majority of Democratic appointees, have complained that the Obama appointees are only a little more liberal than their Republican colleagues. Also, the average age of Obama’s circuit court judges is 54.1 (and seventy-three of his 214 nominees to both district and appeals courts are 55 or older); the average age of those nominated by Ronald Reagan and the two Bushes was about 49.4 years.