Where Are the Judges?

The Obama Administration has announced nominees to the federal bench at relatively slow pace thus far, as I noted here and here.  Now the lag is beginning to get more attention.  As the NYT reported over the weekend:

President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts. . . .

The White House contends that the number of confirmations, not nominations, is what matters. They argue that they were proceeding more methodically than Mr. Bush’s team — in ways like making a greater effort to consult with home-state senators — and so a higher percentage of Mr. Obama’s nominees would ultimately become judges. . . .

By this point in 2001, the Senate had confirmed five of Mr. Bush’s appellate judges — although one was a Clinton pick whom Mr. Bush had renominated — and 13 of his district judges. By contrast, Mr. Obama has received Senate approval of just two appellate and four district judges.

Those numbers could rise rapidly. Four appellate and four district court nominees have cleared the Senate Judiciary Committee and are waiting for floor votes. Democrats have accused Republicans of stalling them by raising obstacles to votes on uncontroversial nominees. Republicans counter that Democrats, too, used procedural tactics to slow or block some Bush nominees.

The story notes that the Administration had to focus on an early Supreme Court nomination and has been hampered by the lack of a confirmed head of the Office of Legal Policy.  It also raises the possibility that turnover in the White House Counsel’s office will slow things even more.

The Brookings Institution’s Russell Wheeler has a useful report on the pace of nominations through October 20.  He concludes:

Probably the two most striking findings about this early comparative look at the current and most recent administrations’ early nominees are: 1) the relatively paucity of Obama administration nominees, and 2) the delay in full Senate action on those nominees—quick Judiciary Committee hearings but little more. It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three.

Even though Senate Democrats have a filibuster-proof majority, some argue that the low number of confirmations is primarily due to Republican delay tactics. This argument is featured in the LA Times as well.  Yet as the data show, the percentage of appellate nominations confirmed by this point is about the same.

Doug Kendall accuses Senate Republicans of a “new form of obstructionism.”  This would be true if by “new” Kendall meant “less obstinate than their predecessors.”  During the Bush Administration, Senate Democrats adopted the unprecedented tactic of filibustering appellate judicial nominations, including several individuals who were extremely well qualified.  (See also here.)  While Senate Republicans have hardly greased the skids for Obama’s nominees, they have yet to do anything comparable.  Ed Whelan further rebuts Kendall’s misleading account here, here, and here.  (See Kendall’s rejoinders here and here.)

In the end, the primary reason for the slow rate of judicial confirmations is that neither the Obama Administration nor the Senate leadership has made judicial nominees a significant priority.  The White House has been slow to make nominations, and the Senate leadership has made little effort to push those nominated through.  Further, for all his talk of bipartisanship President Obama has yet to reciprocate President Bush’s decision to re-nominate stalled Clinton nominees, as Bush did at the beginning and end of his presidency.  Like those who preceded them, Senate Republicans cling to the Senate’s blue slip tradition and seek extensive time to debate some of Obama’s nominees, yet there will be no filibuster (even if only because Republicans don’t have sufficient party discipline or the votes) — and that’s a good thing.

For some of my prior posts on confirmation history here, here, here, here, and here.

Probably the two most striking findings about this early comparative look at the current and most recent administrations’ early nominees are: 1) the relatively paucity of Obama administration nominees, and 2) the delay in full Senate action on those nominees—quick Judiciary Committee hearings but little more. It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three.