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THE STATE OF THE JUDICIARY ­ JANUARY­MAY 2011

Judicial Nominations in the 112th Congress

A report by

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Alliance for Justice

About Alliance for Justice

Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. AFJ works to ensure that the federal judiciary advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. It is the leading expert on the legal framework for nonprofit advocacy efforts, providing definitive information, resources, and technical assistance that encourages organizations and their funding partners to fully exercise their right to be active participants in the democratic process. For more information on this report, contact AFJ's Washington headquarters. Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC 20036 202.822.6070 All material within this report is protected by copyright law and may not be reproduced without the express written consent of Alliance for Justice.

© 2011 Alliance for Justice

Contents I. Summary ...................................................................................................................... 4 II. A New Sense of Urgency Emerges ........................................................................... 6 III. Procedural Changes in the New Congress............................................................. 10 IV. A Quantitative Overview of Judicial Nominations: January-April 2011.................. 12 A. Action During the 112th Congress...................................................................... 12 B. Updated Data ..................................................................................................... 13 Composition of the Courts ............................................................................... 13 Nominations...................................................................................................... 13 Vacancies and Judicial Emergencies.............................................................. 17 Confirmations ................................................................................................... 20 Projections through 2011 ................................................................................. 22 V. Racial, Gender and Professional Diversity, and Age of President Obama's Nominees ...................................................................................................................... 23 A. Racial and Gender Diversity .............................................................................. 23 B. Professional Diversity......................................................................................... 24 C. Age ..................................................................................................................... 26 Notes .......................................................................................................................... 28

The State of the Judiciary: Judicial Nominations in the 112th Congress

I. Summary

In Alliance for Justice's report on judicial nominations in the first two years of the Obama presidency, State of the Judiciary: President Obama and the 111th Congress, we concluded that far more must be done in the current Senate if President Obama is going to leave a strong imprint on the federal judiciary and fill the growing backlog of vacancies on the federal bench.1 This year, even with an increased sense of urgency and a revised Senate process, the pace of confirmations remains insufficient to alleviate the crisis in the federal judiciary. Of equal concern, Senate Republicans filibustered Goodwin Liu, President Obama's nominee for the Ninth Circuit, despite his stellar record and widespread endorsements from across the political spectrum.2 This crass political move introduces considerable uncertainty into the process, as no one knows whether Mr. Liu will be the only nominee filibustered by Republicans, or just the first. Mr. Liu has asked for his nomination to be withdrawn. 3 During the President's first two years in office, judicial Even with an increased vacancies increased from 55 to 97 ­ nearly one in eight sense of urgency and a judgeships ­ and "judicial emergencies" increased from 20 to 46,4 creating a serious crisis for thousands of revised Senate process, Americans seeking justice in courts across the country. the pace of confirmations In addition, only three of the seven circuit and district remains insufficient to court nominees who had received significant alleviate the crisis in the Republican opposition in the Senate Judiciary federal judiciary. Committee were confirmed. By the time the last Congress adjourned, 43 pending nominations did not receive final votes, leaving President Obama with the lowest percentage of confirmed nominees of any president in history, and the lowest number of total confirmations of any president since Jimmy Carter in 1977, when the judiciary was 40% smaller.5 This year, a renewed sense of urgency has dominated the national conversation about judicial nominations. John Roberts, the Chief Justice of the U.S. Supreme Court, U.S. District Judges Royce C. Lamberth and W. Royal Furgeson, Jr.,6 American Bar Association President Stephen Zack,7 and a number of Senators have spoken out, as has White House Counsel Robert Bauer, Attorney General Eric Holder, along with editorial pages and commentators around the country. This sense of urgency has, to some extent, helped mitigate the tactics of obstruction that characterized the previous session. For example, under pressure to modify the Senate's rules, Majority Leader Harry Reid and Minority Leader Mitch McConnell reached an informal agreement for greater comity on judges and an end to the use of secret holds.8 In addition, the White House and Senate have taken steps toward restoring order and regularity to the nomination and confirmation process.9 4

The State of the Judiciary: Judicial Nominations in the 112th Congress

In January, the President re-nominated 42 of the men and women who were left languishing at the end of the last session.10 He has since made 34 new nominations, for a total of 76 overall. As of May 31, the Senate has confirmed 24 of those nominees, all of them carryovers from last Congress. With new retirements, the total number of vacancies has declined by only 5 this Congress.11 In May, three important events occurred that could change matters going forward. First, the Senate held a cloture vote on John McConnell, a long-pending nominee to the District Court of Rhode Island, for a seat that had been vacant since 2006. 12 Despite vigorous last-minute opposition by the U.S. Chamber of Commerce,13 cloture was invoked by a 63-33 vote on May 3rd, with 11 Republican Senators in support, and Mr. McConnell was confirmed on a party-line vote the next day.14 This cloture vote may help break the logjam that has held up district Unless the current pace court nominees for the last two years.15 Indeed, by the end of that week, Senators Reid and McConnell agreed to vote on Edward is accelerated, there Chen, a nominee to the District Court of the Northern District of may only be a minimal California, without cloture being required. Mr. Chen was originally decrease in the total nominated on August 6, 2009, and despite being voted to the number of vacancies Senate floor multiple times during the 111th Congress, was never in district and circuit voted on. Confirmed on May 10th by a vote of 56-42, he becomes courts at the end the first Asian American federal judge in San Francisco.16

of the year.

Second, the White House increased the pace of nominations. Other than re-nominating carryovers from the 111th Congress, until May the White House had been averaging about two nominations per week when the Senate was in session. In May, this average doubled. The increased pace is welcome, but needs to be sustained to have an impact, as there are 57 judicial vacancies with no nominees, a high number at this point in a presidency. Third, on May 19th, Republicans voted to block Goodwin Liu's nomination to the Ninth Circuit. Only one Republican supported voting on his nomination,17 in spite of numerous Republican Senators on record saying they would never vote to filibuster a judicial nominee, with several calling it unconstitutional.18 "The problem Republicans ha[d] with Goodwin Liu [wa]sn't that he [wasn't] good enough to be a judge, it's that he [was] too good." said Nan Aron, the president of Alliance for Justice.19 Given that 109 vacancies remain open, the bottom line is that unless the current pace is accelerated, there may only be a minimal decrease in the total number of vacancies in district and circuit courts at the end of the year.20 The Senate has been acting like someone with a huge credit-card balance that only pays the interest each month, never reducing the principal and staying endlessly in debt. Even with a new sense of urgency, if the flow of nominees doesn't pick up, we will end the year where we started ­ with a judicial crisis of unprecedented scope. 5

The State of the Judiciary: Judicial Nominations in the 112th Congress

II. A New Sense of Urgency Emerges

By the end of the last Congress, the obstruction of President Obama's nominees and the breakdown of the confirmation process in the Senate had become national news and a major political topic. The White House and the Congress faced increasing pressure to act to address the growing crisis in the federal judiciary, including the significant growth of "judicial emergencies" that were hampering the administration of justice nationwide. Many leaders at the White House, in Congress, in the Judiciary, the private bar, and the media have spoken out about the pressing need to fill judgeships. This year, the President's point man on judicial nominations, White House Counsel Robert Bauer, has already spoken twice in public about the need for action. Bauer first spoke at length on February 2, 2011, at an American Constitution Society event. He said:

The confirmation rate is perilously low, and one result is the large number of seats designated as judicial emergencies. More than one half of the nominations now pending in the Senate are judicial emergencies. ... This is a new world. A confirmation process once characterized by hard-fought battles waged around specific nominees has been more broadly disabled by steady resistance to moving nominees across-the-board, as a class. ... In this new Congress, [this Administration] will continue to make this case for treating the confirmation of judges as the priority, the urgent priority that it is--we will make this case from today through the end of this session and the next. And our goal is to do so in a way that sharply, clearly defines the issue; seeks to raise the sense of urgency; and calls on the good faith and shared commitment to our system of justice that can be found among Democrats and Republicans alike.21

Bauer repeated those sentiments on April 14, 2011, at a meeting with American Bar Association members, telling them, "We need to escalate significantly the general sense of urgency," and that "I believe, the outside-Washington community ­ the lawyers in the community, the judges, the editorial writers, the business groups ­ has 6

The State of the Judiciary: Judicial Nominations in the 112th Congress

an enormous role to play in continuing to bring home to those of us who work in Washington, D.C., the impact or the effects of gridlock."22 ABA's President Stephen Zach agreed, noting in The Hill's Congress Blog, that, "[u]nderstaffed courts, unable to deliver speedy justice, hurt our country's rule of law and ability to attract business and growth. The impact on individuals is just as crushing as cases drag on for years."23 Ashley L. Belleau, President of the Federal Bar Association added: "Record caseloads in many federal judicial districts cause trials to be delayed, especially civil cases. This is not good for the state of justice in our nation.... [T]here is an unprecedented crisis in our third branch of government."24 On May 4th, Attorney General Eric Holder voiced his concerns in testimony before the Senate Judiciary Committee:

Today, our nation's court system is in a state of crisis, with more than ten percent of federal judgeships sitting vacant. If the Senate maintains the confirmation pace set during the last two years, the result will be a federal judicial system stressed to the breaking point, with litigants waiting longer and longer for their day in court. I urge the Senate to act without delay on all outstanding judicial nominations.25

Several Democratic Senators have also spoken out. For example, Judiciary Committee Chairman Leahy regularly calls for urgent floor action on nominees: "[E]very judge confirmed so far this year could and should have been confirmed last year. Every one of them was unanimously reported last year and would have been confirmed had Republicans not objected."26 In response to the attempted filibuster of John McConnell, Senator Leahy added: "Cloture is now being required to overcome another in a series of Republican filibusters in order to vote up or down on a judicial nominee at a time when extensive, and extended, judicial vacancies are creating a crisis for the Federal justice system and all Americans."27 Senator Chuck Schumer has also spoken out on the floor: "I regret that too many of our colleagues on the other side of the aisle are blocking judges. It is not fair and it is not right."28 During the McConnell debate, he added: "I rise to talk about a serious crisis in the third branch of government; that is, the rate of vacancies in the U.S. district courts. There is a crisis that is unlike almost all the other issues we grapple with on a daily basis. It has a very simple solution.... [C]onfirm these judges."29 During the McConnell debate, Senator Reid also voiced his concern about Republican obstruction of nominees and the vacancy crisis, as did other Senators.30

7

The State of the Judiciary: Judicial Nominations in the 112th Congress

Finally, we will confirm judicial nominees, many of whom we have waited a long time for in the Senate. If the minority forces us to file cloture on those nominees in order to get a final vote, I will file cloture. I think it is too bad if we get involved in this with trial court judges. We cannot waste any more time or play these games for a longer period of time. The country needs these empty benches filled.31

During the debate preceding the failed cloture vote on Goodwin Liu's nomination, several other Senators discussed the judicial vacancy crisis. For example, Senator Richard Durbin noted that Mr. Liu's nomination, pending since February 2010, would fill a judicial emergency on the Ninth Circuit.32 Senator Daniel Inouye added:

I would like to remind my colleagues that there are still many judicial vacancies that need to be filled. The constitutional right to a speedy trial correlates to the number of judges able to hear cases. While it is important to ascertain the character and capacity of a nominee to such an important position, postponing Goodwin Liu's confirmation does a disservice to our Nation, and to this body's responsibility for confirming Presidential nominees.33

Significantly, many federal judges have also joined the chorus of those calling for a new sense of urgency for judicial nominations. As we noted in President Obama and the 111th Congress, Chief Justice John Roberts addressed the crisis in his Year End Report on the Federal Judiciary in December.34 In addition, the Judicial Council of the Ninth Circuit and Supreme Court Justice Anthony Kennedy called for an end to judicial nominations gridlock.35 At a Brookings Institution event in February 2011, Chief Judge Royce Lamberth of the District Court for the District of Columbia, said, "we need to end the war over selection of judges."36 Senior Judge W. Royal Furgeson, Jr. of the Western District of Texas added, "Vacancies desperately need to be filled; new judges desperately need to be added. We owe that to our border judges. We owe that to our citizens. We owe that to our Constitution."37 Editorial pages and commentators have also called for movement on judges:

Sadly, Sen. Chuck Grassley, R-Ia., played a role in defeating the Liu nomination. This is especially disappointing since, as the ranking Republican on the Senate Judiciary Committee - which vets judicial nominees - Grassley could have helped set a new tone on confirmations. He has done just the opposite. - Des Moines Register, May 23, 2011

8

The State of the Judiciary: Judicial Nominations in the 112th Congress

[T]here's a vacancy crisis in the judiciary right now, created almost entirely by Senate Republicans refusing to allow President Obama's judicial nominees to be considered in a timely manner. -Washington Monthly, May 4, 2011 [I]n the federal court for the Southern District of New York, the epicenter for commercial litigation in the United States. Eight of the 28 seats for active district judges are vacant. The cause is mostly attributable to partisan politics in Washington: Senate Republicans are blocking President Barack Obama's nominees in petty power plays or in efforts to exact revenge on Democrats who held up Bush administration appointees. - Crain's New York Business, April 1, 2011 [C]riminal defendants, who are normally guaranteed a trial within 70 days, wait up to six months. Things are even slower on the civil side. If you're a company or an individual involved in a federal lawsuit, you can expect to be cooling your heels for two years before the trial begins. - Chicago Tribune, April 18, 2011 The constitutional duty of `advice and consent' doesn't mean complain and obstruct. - Fort Worth Star Telegram, April 6, 2011 Keeping the court running smoothly with the proper number of judges is a matter of basic and timely justice. - Grand Rapids Press, February 13, 2011 During the Obama presidency, the Senate has had a dismal record of moving nominations, due largely to unwarranted minority obstruction. The losing side has to get over it and stop slow-boating nominations. - Daily Oklahoman, January 9, 2011

9

The State of the Judiciary: Judicial Nominations in the 112th Congress

III. Procedural Changes in the New Congress

In part out of a sense of urgency, at the outset of the 112th Congress the Senate considered rules reforms that would make it easier to obtain yes-or-no votes on judicial nominees. Among the changes considered was the elimination of the mandatory 48-hour waiting period after a cloture vote and a ban on secret holds, a practice which had been notoriously abused by Republican Senators during the previous Congress.38 Senators Chuck Schumer and Lamar Alexander also discussed ways to reduce the number of executive agency nominees subject to Senate consent, which could help free both committee and Senate floor time, To date, the agreement and which theoretically could be applied to the consideration on secret holds has held, of more judicial nominees. Ultimately, a deal was struck that but the use of judicial removed one-third of executive agency nominees from the 39 confirmation process. nominations as political The proposal to reduce post-cloture delays failed to win potentially active. approval, but the ban on secret holds was agreed to. To date, the agreement on secret holds has held, but the use of judicial nominations as political footballs remains potentially active, as evidenced by South Carolina Senator Lindsay Graham's threat to block all nominations until he received funding related to a dredging project in Charleston harbor, even though among the nominations he sought to block were those he himself had proposed.40 The most important procedural change during the 112th Congress, however, has been a return to a form of "regular order," which has traditionally guided the nomination and confirmation process in the Senate, and which many believed was lacking in the last Congress. Our analysis of the current system, covering the period from January through May, shows that regular order has been restored, although its use has not been maximized: The White House has made new nominations almost every Wednesday that that the Senate has been in session. The Senate Judiciary Committee has held hearings for nominees every other Wednesday, which typically cover a combination of circuit and district court nominees, ranging in number from two to five. The committee has held votes during its executive business meetings, which take place every Thursday when the Senate is in session. The Senate has voted to confirm one or more nominees nearly every Monday since the committee began voting them out on February 3rd, with a few additional nominees confirmed on other days of the week.41 10

footballs remains

The State of the Judiciary: Judicial Nominations in the 112th Congress

The numbers in Part IV below also show that although the process is more systematic than during the last session, it still has not confirmed enough judges to solve the crisis in the federal judiciary. Even within the constraints of the schedule described above, more could be done. Judicial vacancies are never completely eliminated, of course, and the problem has been exacerbated by Republican obstruction to the point that it will take some time to catch up. Nevertheless, the process of "regular order" The President must should operate at maximum efficiency, which is not yet the case. To make a significant dent in the vacancy crisis, assertively exert personal where 57 vacancies remain with no nominees, the leadership by both President needs to accelerate the pace of nominations. submitting more nominees At the same time, the pace of final confirmation votes by and by using the full power the full Senate must also be accelerated, and all nominees of his office to push the must be given yes-or-no votes, regardless of minority Senate to confirm them. opposition. Although the White House Counsel has made encouraging statements about the need for urgency, the President must assertively exert personal leadership by both submitting more nominees and by using the full power of his office to push the Senate to confirm them. The obstruction of Goodwin Liu from receiving a final vote, and his subsequent withdrawal from further Senate consideration, brings this into full relief. In contrast to President George W. Bush, who often spoke out in forceful terms if one of his nominees was filibustered, so far President Obama has been restrained in his reaction. The large number of vacancies presents the President with an opportunity to have a profound long-term effect on the judiciary. He should match his laudable efforts to bring gender and racial diversity to the federal bench with efforts to identify nominees from diverse professional backgrounds, including public interest and civil rights law and academia.

11

The State of the Judiciary: Judicial Nominations in the 112th Congress

IV. A Quantitative Overview of Judicial Nominations: January-April 2011

A. Action During the 112th Congress At the end of the 111th Congress, 43 pending nominations lapsed and were returned to President Obama. At the outset of the 112th Congress, the President renominated 42 of them.42 He has since made 34 new nominations to courts of appeals and district courts, for 76 nominations overall. The Senate has confirmed 24 of those nominees during the 112th Congress, all of them carryovers from the 111th Congress. Despite the new nominations and confirmations, the judicial vacancy crisis has not been abated during the 112th Congress. As illustrated in the charts and tables below, more than 1 in 8 judgeships remain unfilled, judicial emergencies remain unacceptably high, and President Obama still badly trails his predecessors in terms of aggregate nominations and confirmations.

If the pace of nominations, confirmations and new vacancies remains unchanged, by the end of the year there will still be a serious judicial vacancy crisis.

Until recently, a major concern was what would happen when nominees that received Republican opposition in committee came to the floor. One of those nominees, John McConnell for the District Court of Rhode Island, finally received cloture and confirmation votes on May 3rd and 4th, respectively. Despite intense opposition from the U.S. Chamber of Commerce, 11 Republican Senators joined all Democrats in attendance to end debate by a 63-33 vote. The next day, Judge McConnell was confirmed on a party-line vote. With the logjam broken, an agreement quickly followed to move directly to a final vote on Edward Chen, nominee to the District Court for the Northern District of California. He was confirmed May 10th by a 56-42 vote. Given the statements made by Republican Senators, it seems unlikely that any more district court nominees will require cloture before final votes are scheduled on the floor. This same sense of comity was not carried over to circuit court nominee Goodwin Liu, whose cloture vote was defeated 52-43 on May 19th. This is the first successful filibuster of an Obama nominee, and forced several Republican Senators to renege on longstanding commitments to never filibuster a judicial nominee.43 The question remains whether this signals a Republican effort to keep the best, brightest, and youngest nominees off the bench, or is part of a larger plan to keep seats open for a future Republican president.44 The answer to this question will depend on the outcome of pending and future nominations by President Obama. Looking forward, if the pace of nominations, confirmations and new vacancies remains unchanged, our projections below indicate that by the end of the year there will still be a serious judicial vacancy crisis.45 12

The State of the Judiciary: Judicial Nominations in the 112th Congress

B. Updated Data

Composition of the Courts

Republican appointees still dominate the federal judiciary. The percentage of Republican versus Democratic appointees has barely changed so far this year. Courts of appeals have moved from 45.1% to 45.9% Democratic, while district courts have moved from 41.6% to 42.9% Democratic. Nominating-Party Composition of the Courts: the Past Three Presidencies

Supreme Court Courts of Appeals Percentage Courts of Appeals District Courts Percentage of District Courts Total Judges Percentage of Total Judges

Party As of 5/31/2011 DemocratAppointed RepublicanAppointed End of Bush Administration DemocratAppointed RepublicanAppointed

4

74

45.3%

261

43.0%

339

43.5%

5

89

54.7%

345

57.0%

439

56.5%

2

63

38.4%

261

41.4%

326

40.5%

7

101

61.6%

370

58.6%

478

59.5%

Nominations

President Obama still badly trails his two predecessors in terms of nominations. At the end of the 111th Congress, the President was 27 nominations behind President Bush and 37 nominations behind President Clinton at a similar point in their presidencies, and there were enough vacancies open for him to keep pace with either of them. Instead of catching up, President Obama has slipped further behind President Bush (now 51 nominations behind), and has barely made a dent in the gap with President Clinton (now 34 nominations behind), at the comparable point in their presidencies. (See table on next page.)

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The State of the Judiciary: Judicial Nominations in the 112th Congress

Nominations as of 5/31/11

200

150

CCA

100

DCT Total

50

0

Clinton

Bush II

Obama

Clinton Circuit Court District Court Total 28 143 171

Bush II 43 145 188

Obama 29 108 137

14

The State of the Judiciary: Judicial Nominations in the 112th Congress

As one would expect from gap in nominations, President Obama has more vacancies without nominees than President Bush ­ who had 21 ­ and the same number as President Clinton ­ who had 57.

Vacancies Without Nominees

250

200 Aggregate Vacancies 150 Aggregate Nominees Vacancies Without Nominees

100

50

0

Clinton

Bush II

Obama

Clinton Aggregate Vacancies Aggregate Nominees

46

Bush II 207 186 21

Obama 193 136 57

220 163 57

47

Vacancies Without Nominees

15

The State of the Judiciary: Judicial Nominations in the 112th Congress

As can be seen from the chart below, President Obama needs to keep up the increased pace of nominations that began in May if he is to close the significant number of vacancies for which there is no nominee. If he were to do so, it would also tend to put the onus on the U.S. Senate to confirm more nominees.

Vacancy-Nominee Trends During the 112th Congress

140

120

All Article III Vacancies

100

Vacancies w ith No Nominees

80

Pending Nominees

Nominations 60 Confirmations 40

20

0 1/19/11 2/16/11 3/16/11 3/30/11 4/13/11 4/27/11 5/11/11 5/25/11 1/5/11 2/2/11 3/2/11

16

The State of the Judiciary: Judicial Nominations in the 112th Congress

1/5/11 All Article III Vacancies Vacancies with No Nominees Pending Nominees Nominations Confirmations 114

1/12/11 116

1/19/11 116

1/26/11 116

2/2/11 118

2/9/11 118

2/16/11 119

2/23/11 120

72

74

74

68

68

71

72

73

42 42 0

42 0 0

42 0 0

48 6 0

50 2 0

47 0 3

47 2 2

47 0 0

3/2/11 All Article III Vacancies Vacancies with No Nominees Pending Nominees Nominations Confirmations 120

3/9/11 117

3/16/11 116

3/23/11 116

3/30/11 117

4/6/11 117

4/13/11 115

4/20/11 115

73

71

70

71

73

71

71

71

47 2 2

46 2 3

46 2 2

45 0 1

44 0 1

46 3 1

44 0 2

44 0 0

4/27/11 All Article III Vacancies Vacancies with No Nominees Pending Nominees Nominations Confirmations 115

5/4/11 112

5/11/11 111

5/18/11 109

5/25/11 108

5/31/11 109

71

64

61

61

56

57

44 0 0

48 7 3

50 4 2

48 1 2

52 3 0

52 0 0

17

The State of the Judiciary: Judicial Nominations in the 112th Congress

Vacancies and Judicial Emergencies

During the 112th Congress, current vacancies have declined from 97 to 87. We are using current vacancies instead of all vacancies here because it the measure of vacancies for which there could be a judicial emergency. For the judicial vacancy crisis to abate, the vacancies lines at the top of the chart below need to begin to decline much more rapidly.

District and Circuit Court Vacancies

120

100

80

60

CCA DCT Total

40

20

0 Mar-09 Mar-10 May-09 May-10 Mar-11 May-11 Jan-09 Jul-09 Nov-09 Jan-10 Jul-10 Nov-10 Sep-09 Sep-10 Jan-11

1/20/09 Courts of Appeals District Courts Total 13 42 55

5/1/09 15 54 69

9/1/09 21 72 93

1/1/10 20 81 101

5/1/10 16 88 104

9/1/10 20 84 104

1/5/11 16 81 97

5/31/11 16 72 88

18

The State of the Judiciary: Judicial Nominations in the 112th Congress

Judicial emergencies have begun to subside this year, but the number of emergencies remains 61% higher than what it was at the beginning of President Obama's tenure, so more progress needs to be made.

Judicial Emergencies

60

50

40

30

20

10

0

1/20/09 20

5/1/09 23

1 Se 20 09 pt em be r1 20 Ja 09 nu ar y 1 20 10 M ay 1 Se 20 10 pt em be r1 20 Ja 10 nu ar y 5 20 11 M ay 31 20 11

20 Ja nu ar y

20 09

M ay

9/1/09 28

1/1/10 33

5/1/10 40

9/1/10 49

1/5/11 46

5/31/11 33

19

The State of the Judiciary: Judicial Nominations in the 112th Congress

Confirmations

The Senate has confirmed far fewer nominees at this point in President Obama's first term than it had confirmed for his two predecessors in office. Some of this is due to the President not keeping up with his predecessors in terms of nominations, as seen above.

Confirmations as of 5/31/2011

200

150

100

CCT DCT Total

50

0 Clinton Bush II Obama

Clinton Circuit Court District Court Total 22 121 143

Bush II 24 102 126

Obama 19 65 84

20

The State of the Judiciary: Judicial Nominations in the 112th Congress

The fact that the Senate has confirmed President Obama's nominees at a lower rate than his two predecessors, however, demonstrates that Republican obstruction is a major reason for so few confirmations, and the judicial vacancy crisis that has worsened as a result.

Confirmation Percentage as of 5/31/2011

100%

80%

60% CCT DCT 40% Total

20%

0% Clinton Bush II Obama

Clinton Circuit Court District Court Total 79% 85% 84%

Bush II 55% 70% 67%

Obama 65% 60% 61%

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The State of the Judiciary: Judicial Nominations in the 112th Congress

Projections through 2011

If the pace of nominations, confirmations, and new vacancies through May of the 112th Congress holds for the rest of 2011, there will be only 17 fewer vacancies at the end of the year than there are now.48 This would reduce the number of total vacancies from 114 to 97. The number of current vacancies would decline from 88 to 71, thereby reducing vacancy rate in the federal judiciary from 10.0% to 8.1%. These modest reductions would not be enough to alleviate the judiciary crisis. It would leave President Obama with a slightly higher vacancy rate than existed at the end of the third year of President Clinton's first term (7.8%), but a much higher vacancy rate than existed at the end of President Bush's first term (5.3%). Our estimate considers the rate at which: a) President Obama has made nominations, b) the Senate Judiciary Committee has moved them to the Senate floor, c) the Senate has voted to confirm those nominees, and d) new vacancies have been created as judges take senior status, retire from the bench, or die. Overall, we estimate that, at current rates, the Senate would confirm approximately 44 new judges in the remainder of 2011, but this would be offset by 27 new vacancies. Needless to say, these projections are not set in stone. They can, and should, be improved upon.

22

The State of the Judiciary: Judicial Nominations in the 112th Congress

V. Racial, Gender and Professional Diversity, and Age of President Obama's Nominees

The President's new nominees are similar in terms of racial, gender, and professional diversity to his previous nominees, though they are slightly younger on average. Twenty-five of his nominees are white, 5 are African American, 1 is Native American, and 3 are Hispanic. Almost half ­ 16 of 34 ­ are women. All but three of the nominees have experience in private practice, 19 served as judges, 12 served as prosecutors, 3 served as public defenders, 4 served in academia, and one served as a legal aid attorney. None worked for a non-governmental public interest organization. The nominees average 50.9 years old, which is 2.1 years younger than the average age of nominees pending at the end of the 111th Congress. The 24 nominees who the Senate has confirmed during the 112th Congress are also similar in many respects to the nominees who were confirmed during the 111th Congress. Their racial and professional diversity is comparable, but a higher percentage are men ­ 17 of 24 ­ and they are older on average ­ 55.1 years old ­ than President Obama's previously confirmed nominees. Fifteen of the confirmed nominees are White, 4 are Hispanic, 3 are African American, 1 is Asian American, and 1 is Arab American. Twenty-one of the 24 served in private practice, 14 served as judges, 8 served as prosecutors, 5 served as public defenders, and 2 served as legal aid attorneys. A. Racial and Gender Diversity President Obama's nominees, remain the most diverse in terms of race and gender in American history. A higher percentage of his newest nominations have been women, while a slightly lower percentage have been minorities, but this has not changed the overall composition of the courts to any significant degree.

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The State of the Judiciary: Judicial Nominations in the 112th Congress

Circuit Courts of Appeals and District Court Judges by Gender and Ethnicity

President/ Term Obama 84 confirmed Obama 52 pending Obama not renominated Obama 137 total Bush II (2001-08) confirmed Clinton (1993-2000) confirmed Bush I (1989-92) confirmed Reagan 1981-88) confirmed Carter (1977-80) confirmed 1 1 (%) 0 1 (%) 0 0 0 0 0 Total Male 46 (54.7%) Female 38 (45.3%) White 48 (57.1%) African American 20 (23.8%) Hispanic 8 (9.5%) Asian American 7 (8.3%) Native American Arab American 1 (1.1%)

0

28 (53.8%)

24 (46.2%)

37 (71.1%)

7 (13.4%)

6 (11.5%)

1 (1.9%)

1 (1.9%)

0

75 (54.7%)

62 (45.3%)

86 (62.7%)

27 (19.7%)

14 (10.2%)

8 (5.8%)

1 (0.7%)

1 (0.7%)

322

250 (77.6%)

71 (22.0%)

265 (82.2%)

23 (7.1%)

29 (9.0%)

4 (1.2%)

0

0

372

263 (70.7%)

109 (29.3%)

280 (75.3%)

61 (16.4%)

25 (6.73%)

5 (1.3%)

1 (0.3%)

0

192

156 (81.3%)

36 (18.8%)

171 (89.1%)

13 (6.8%)

8 (4.2%)

0

0

0

376

345 (91.8%)

31 (8.2%)

353 (93.9%)

7 (1.9%)

14 (3.7%)

2 (0.5%)

0

0

259

219 (84.6%)

40 (15.4%)

202 (78.0%)

37 (14.3%)

16 (6.2%)

3 (1.2%)

1 (0.4%)

0

B. Professional Diversity President Obama's new nominees have a very similar professional profile to his previous nominees. Most have served in private practice, as judges, or as prosecutors prior to their nominations, while fewer have been public defenders, legal-aid attorneys, or non-governmental public interest attorneys.

24

The State of the Judiciary: Judicial Nominations in the 112th Congress

Circuit Court Nominee Experience

30 25 20 15 10 5 0 Private Practice Federal Judge Prosecutor Litigation and/or Policy State Judge Academia Public Defender Legal Aid Attorney Public Interest Attorney

Non-Govt. Public Interest Attorney 0 2 4

Private Practice 28

Federal District Judge 13

Govt. Civil Litigator and/or Policy Counsel 13

Prosecutor 12

State Judge 10

Academia 6

Legal Aid Attorney 3

Public Defender

District Court Nominee Experience

120 100 80 60 40 20 0

Private Practice

State Judge

Prosecutor

Federal Magistrate

Litigation and/or Policy

Academia

Public Defender

Legal Aid Attorney

Private Practice 98

Prosecutor 42

State Judge 39

Govt. Civil Lit. and/or Policy Counsel 35

Federal Magistrate 23

Public Defender 18

Legal Aid Attorney 4

Academia

Public Interest Attorney

Non-Govt. Public Interest Attorney 1

25

The State of the Judiciary: Judicial Nominations in the 112th Congress

C. Age President Obama's new nominees are decidedly younger than his previous nominees. However, they are still older on average ­ 50.9 years old ­ than the average age of any of the last three Republican presidents' confirmed judges. Unfortunately, President Obama's youngest circuit court nominee ­ Goodwin Liu ­ who was 39 at the time of his nomination to the Ninth Circuit, was successfully filibustered by Republicans, after which he asked that his nomination be withdrawn. In contrast, Henry Floyd, a 63-year-old nominee to the 4th Circuit, is certain to be confirmed. Commentators have argued that President Obama needs to offer far more circuit court nominees under age 50, as Republican presidents have consistently done.49

Average Age of Confirmed Judges

55 54 53 52 51 CCA 50 49 48 47 46 45 Obama Bush II Clinton Bush I Reagan Carter DCT Overall

Obama

Bush II 49.6

Clinton 51.2

Bush I 48.7

Reagan 50

Carter 51.8

Average Age of Confirmed Courts of Appeals Judges Average Age of Confirmed District Court Judges Overall Average Age50

54.5

51.8 52.4

49.1 49.3

49.5 49.8

48.2 48.3

48.6 48.9

49.6 50.1

26

The State of the Judiciary: Judicial Nominations in the 112th Congress

District and Circuit Nominees by Age at Nomination

12

10

8

6

4

2

0 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63

Age of Nominee Number of Nominees

39 3

40 3

41 2

42 6

43 1

44 4

45 3

46 8

47 7

48 2

49 6

50 7

51 5

Age of Nominee Number of Nominees

52 9

53 10

54 9

55 9

56 9

57 9

58 10

59 6

60 4

61 3

62 0

63 2

27

The State of the Judiciary: Judicial Nominations in the 112th Congress

Notes

1

ALLIANCE FOR JUSTICE, STATE OF THE JUDICIARY: PRESIDENT OBAMA AND THE 111TH CONGRESS (2011), available at http://www.afj.org/judicial-selection/state_of_the_judiciary_111th_congress _report.pdf. Richard Painter, who worked on the confirmations of John Roberts and Samuel Alito as President George W. Bush's chief ethics counsel, wrote that Liu is an "exceptionally qualified, measured, and mainstream nominee" who the Senate should "vote to confirm." Former Transportation Secretary William Coleman, said that Liu "will make a tremendous judge." Tom Campbell, former Republican Congressman from California commented: "Liu will bring scholarly distinction and a strong reputation for integrity, fair-mindedness, and collegiality to the Ninth Circuit." Former Whitewater prosecutor and appeals court judge Kenneth Starr has called Liu "a person of great intellect, accomplishment, and integrity" and "an extraordinarily qualified nominee." Citations for these quotes are available at http://www.afj.org/judicial-selection/nominees/goodwin-liu-report-final.pdf. Letter from Goodwin Liu to President Obama (May 25, 2011), available at http://img.slate.com/media/7/withdrawal%20letter%20to%20POTUS%20-%2011.05.25.pdf. STATE OF THE JUDICIARY , supra note 1, at 4. Id. See Judges Royce C. Lamberth and W. Royal Furgeson, Jr., Remarks at the Brookings Institution's forum on Breaking the Judicial Nominations and Confirmations Logjam (Feb. 28, 2011), transcript available at http://www.brookings.edu/~/media/Files/events/2011/0228_judicial_logjam/20110228_jif_trans cript_one.pdf. Stephen Zack, Justice delayed, justice denied in nation's courts, THE HILL, Apr. 13, 2009, available at http://thehill.com/blogs/congress-blog/judicial/155833-judges-delayed-justice-denied-in-nationscourts. Press Release, Democrats And Republicans Reach Agreement On Rules Package (Jan. 27, 2011), available at http://democrats.senate.gov/newsroom/record.cfm?id=330607. A "secret hold" was a procedural device that Senators often used to anonymously block unanimous consent agreements by having a colleague object to a consent agreement on their behalf. By agreement, they have been ended. Senators can still place public holds on nominees, however. See infra Part III. The lone exception was Robert Chatigny, nominee to the Second Circuit. Total vacancies have declined from 114 to 109. Mr. McConnell, a notable trial lawyer who sued tobacco and lead paint manufacturers, was strongly supported by Rhode Island Senators Reed and Whitehouse. For the first time, the Chamber of Commerce oppsed a district court nominee. See Press Release, U.S. Chamber President Urges Senators to Oppose McConnell's Nomination, May 3, 2011, available at http://www.uschamber.com/press/releases/2011/may/us-chamber-president-urges-senatorsoppose-mcconnell%E2%80%99s-nomination.

2

3

4 5 6

7

8

9

10 11 12

13

28

The State of the Judiciary: Judicial Nominations in the 112th Congress

14

Eleven Republican Senators voted for cloture: Alexander, Brown (MA), Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune. Judge McConnell was confirmed on a 50-44 party-line vote. During the 111th Congress, President Obama had the lowest percentage of district court nominees confirmed after two years in office of any president in American history. Four Republican Senators voted to confirm Edward Chen's nomination: Senators Brown (MA), Collins, Murkowski, and Snowe. The only Republican that supported cloture was Senator Lisa Murkowski of Alaska. See Selected Statements from Republican Senators on the Constitutionality of Filibustering Nominees and the Deference Owed to the President's Nominees, May 18, 2011, available at http://democrats.senate.gov/newsroom/record.cfm?id=332924. Ariane deVogue, Obama Court Nominee Focus of Brewing Partisan Battle, ABC NEWS, May 18, 2011, available at http://abcnews.go.com/Politics/president-obama-court-nominee-goodwin-liu-focusbrewing/story?id=13630492. See infra Part IV(B)(5). See White House Counsel Robert Bauer, Remarks at the American Constitution Society's Symposium on Judicial Nominations (Feb. 2, 2011), transcript available at http://www.acslaw.org/files/pdf/Judicial_Nominations_in_2011%28ACS%20National%20Press% 20Club%29.pdf. David Ingram, White House Scratches Its Head Over Some ABA Ratings of Judicial Nominees, The BLT: The Blog of LegalTimes, Apr. 14, 2011, available at http://legaltimes.typepad.com/blt/2011/04/white-house-scratches-its-head-over-some-aba-ratingsof-judicial-nominees.html. Ingram, supra note 17. See Stephen Zack, Justice delayed, justice denied in nation's courts, THE HILL, Apr. 13, 2009, available at http://thehill.com/blogs/congress-blog/judicial/155833-judges-delayed-justice-denied-in-nationscourts. Id. Oversight of the United States Department of Justice: Hearing Before the S. Committee on the Judiciary, 112th Cong. (May 4, 2011) (statement of Eric Holder, Attorney General of the United States), available at http://judiciary.senate.gov/pdf/11-5-4%20Holder%20Testimony.pdf. 157 CONG. REC. 38, S1586-88, available at http://www.gpo.gov/fdsys/pkg/CREC-2011-0314/pdf/CREC-2011-03-14-pt1-PgS1586-2.pdf#page=1. Press Releases, Statement Of Senator Patrick Leahy On Republican Filibuster Of The District Court Nomination Of Jack McConnell, May 3, 2011, available at http://leahy.senate.gov/press/press_releases/release/?id=fafaa9db-ff5c-477d-9672-4501255aab97. 157 CONG. REC. 42, S1890-91, available at http://www.gpo.gov/fdsys/pkg/CREC-2011-0328/pdf/CREC-2011-03-28-pt1-PgS1888.pdf#page=3. 157 CONG. REC. 42, S1888-91, available at http://www.gpo.gov/fdsys/pkg/CREC-2011-0504/pdf/CREC-2011-05-04-pt1-PgS2649.pdf#page=1. See, e.g., Remarks of Senator Coons ("This is not a partisan issue ­ Chief Justice Roberts has similarly noted that the vacancies are causing acute difficulties for some judicial districts.").

15

16

17 18

19

20 21

22 23

24

25

26

27

28

29

30

29

The State of the Judiciary: Judicial Nominations in the 112th Congress

31

157 CONG. REC. 57, S2559-60, available at http://www.gpo.gov/fdsys/pkg/CREC-2011-0502/pdf/CREC-2011-05-02-pt1-PgS2559-7.pdf#page=1. 157 CONG. REC. 69, S3133, available at http://www.gpo.gov/fdsys/pkg/CREC-2011-0519/pdf/CREC-2011-05-19-pt1-PgS3122-2.pdf#page=12. 157 CONG. REC. 69, S3099, available at http://www.gpo.gov/fdsys/pkg/CREC-2011-0518/pdf/CREC-2011-05-18-pt1-PgS3086.pdf#page=13. JUSTICE JOHN ROBERTS, 2010 YEAR-END REPORT ON THE FEDERAL JUDICIARY, Dec. 31, 2010, available at http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf.

32

33

34

35 Carol J. Williams, Legal logjam leaving judges' seats empty in federal courts, LOS ANGELES TIMES, Aug. 30, 2010, available at http://articles.latimes.com/print/2010/aug/30/nation/la-na-judicial-logjam20100831. 36 37 38 39

See Lamberth and Furgeson, supra note 6, at 14. Id. at 18. See ALLIANCE FOR JUSTICE, supra note 1, at 6. Press Release, Senator Charles Schumer, In Final Piece to Bipartisan Deal Reforming Senate Rules, Schumer, Alexander, Lieberman, Collins Unveil Bill to Streamline Senate Confirmation Process (Mar. 30, 2011), available at http://www.schumer.senate.gov/mobile/record_print.cfm?id=332241. Susan Crabtree, Showdown Over Port vs. Pork Averted: Graham and Reid Reach Deal, TPMDC, Apr. 14, 2011, available at http://tpmdc.talkingpointsmemo.com/2011/04/port-showdown-averted-grahamand-reid-reach-deal.php. All of this information can be viewed on the Alliance's 2011 Judicial Nomination Calendar, which is available at http://www.afj.org/judicial-selection/judicial-selection-calendar.pdf. The lone exception was Robert Chatigny, nominee to the Second Circuit. See supra note 18. See Micah Schwartzman, President Obama's penchant for older judges scuttled Goodwin Liu, SLATE, May 26, 2011 (arguing that Republicans filibustered Goodwin Liu not only because of his intellectual brilliance, but the fact that he was 39 years old when nominated, making him by far President Obama's youngest circuit court nominee, and would therefore been ripe for a future Supreme Court nomination or a much longer appellate career), available at http://www.slate.com/id/2295597/. See infra pp. 21-22 (projections through 2011). Aggregate Vacancies equals the total number of confirmations plus the total number of vacancies as of the date of this chart. Aggregate Nominees equals the total number of confirmations plus the total number of pending nominees as of the date of this chart. This assumes that the confirmations through the rest of the year fill current vacancies, and not future vacancies. See Schwartzman, supra note 44; Mark Greenbaum, To leave a liberal legacy in the courts, Obama must imitate the GOP, CHRISTIAN SCIENCE MONITOR, May 26, 2011 (noting that only 7 of President Obama's 30 circuit court nominees were under 50 at the time of nomination; by comparison, 21 of 43 of President Bush's circuit court nominees at a similar point were under 50), available at

40

41

42 43 44

45 46

47

48

49

30

The State of the Judiciary: Judicial Nominations in the 112th Congress

http://www.csmonitor.com/Commentary/Opinion/2011/0526/To-leave-a-liberal-legacy-in-thecourts-Obama-must-imitate-the-GOP.

50

The data in this chart for the five previous presidents was gathered from Professor Sheldon Goldman's Report, W. Bush's Judicial Legacy, which was published in 92 JUDICATURE 6, May-June 2009, 279, 284.

31

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