With the exception of his two Supreme Court nominees, President Obama hasn't made a priority of fully staffing the federal judiciary. Meanwhile, Republicans have stalled the appointments Obama has made in an adolescent grudge match with Democrats — which each party blames the other for beginning.
The result, according to an article this week by Times staff writer Carol J. Williams, is that about one in eight federal judgeships is vacant. Overall, Obama has fared worse than other recent presidents in having judicial nominees confirmed by the Senate. According to the White House, at this point in his presidency Obama has had 48% of his nominees confirmed, compared with 60% for George W. Bush and 68% for Bill Clinton. The Administrative Office of the U.S. Courts says there are 20 vacancies for U.S. courts of appeal and 84 for federal district courts. Nearly 13% of judgeships in the 9th Circuit Court of Appeals, which includes California, are vacant.
Republicans point the finger at the Democratic-controlled Judiciary Committee and Senate Majority Leader Harry Reid (D-Nev.). But Reid's reluctance to bring some nominations to a vote is a response to Republican threats of a filibuster. As for the Judiciary Committee, Democrats insist that it has moved expeditiously to send nominations to the floor. They note that 19 of the 23 nominations pending before the panel were announced only in the last few months, after the selection of Supreme Court Justice Elena Kagan in May.
The real problem, Democrats say, is that Republicans have refused to allow timely confirmation votes on the Senate floor — even for district judges, the foot soldiers of the federal judiciary who traditionally haven't been a source of controversy. Russell Wheeler, an expert on judicial selection at the Brookings Institution, told The Times that the practice of holding up nominations, long common for appeals court vacancies, has "spread like a virus to the district courts."
As Williams' article noted, this is payback for Democratic obstruction of Republican judicial nominees during the George W. Bush administration and even earlier. That tit-for-tat mentality was evident in the widespread and unjustified opposition to Obama's Supreme Court nominees from Republicans, who recalled that as a senator, Obama opposed both of Bush's high court nominees. The irony is that in recent years Supreme Court nominations have moved quickly through the Senate compared with some lower-court nominations.
Obama has the right to blame Republicans for stalling confirmation of all but 42 of his 87 nominees. But his credibility is undermined by the fact that he has been slow to nominate judges. Of 104 judgeships now vacant, nominations are pending for only 39 seats. (An additional nomination was made for a pending vacancy.)
For too many senators, appointees to the federal bench are political pawns, to be played — or kept off the board — to score points against the opposing party. For lawyers and litigants, however, judges delayed means justice denied. Obama needs to remind the Senate, and himself, of that truth.