Alliance for Justice Research on President Obama's Judicial Nominations Finds Last Year's Republican Obstruction and This Year's Sluggish Pace of Confirmations Leave Legacy Still in the Balance

Washington, D.C., June 1, 2011– A little over midway through President Barack Obama’s first term, an Alliance for Justice analysis of his nominations to the federal judiciary finds that the pattern of Republican obstruction that plagued his first two years has partially abated, but that the large number of vacancies carried over from the last Congress has left the federal courts in crisis and amplifies the need for an accelerated schedule of presidential nominations and congressional confirmations.

If the current steady but lethargic pace of nominations and final confirmation votes persists through the end of the year, roughly 44 additional nominees can expect to be confirmed. Accounting for anticipated new vacancies, the total number of vacancies in the federal judiciary will only have been reduced from 114 to approximately 97, with the 2012 election year looming. There are no formal procedural barriers to moving more quickly, however, and the current pace is dictated purely by political will within the administration and the Senate.

That conclusion is drawn from data in two new reports, The State of the Judiciary: President Obama and the 111th Congress, a summary and analysis of the judicial nominations process in the first two years of the administration, and Judicial Nominations in the 112th Congress: January-May 2011, an overview of the patterns emerging after five months of the current Senate session, as well as a calendar tracing activity in each step of the process.

Additionally, the reports find: 

• Republican obstruction in the last Congress left President Obama with the lowest percentage of approved judicial nominees at the end of his first two years of any President in American history.
• Judicial vacancies actually increased in the first two years from 55 to 97 and officially designated “judicial emergencies” exploded from 20 to 46, leaving 29 states without enough judges to handle the case load. The lack of action in the last Congress compelled the President to re-submit 42 nominees in January 2011 and made it even more difficult to catch up with the growing number of vacancies on the federal bench. After five months of the new Congress, only 24 of the President’s 76 nominees have received final votes, and total vacancies now number 109.
• The continued slow pace of confirmations has hampered the President’s ability to shape the federal bench, but this can be rectified by increasing the number of nominations and appreciably accelerating the number of hearings and final votes in the Senate, including for those nominees facing Republican opposition. The historical record shows that the window for action is rapidly closing, however, as fewer judges are traditionally confirmed in presidential election years. That pattern will likely hold in 2012.
• The ratio of judges appointed by Republican and Democratic presidents has changed only slightly, with Republican appointees still accounting for over 56.5 percent of federal judges.

Alliance for Justice President Nan Aron, in releasing these reports, commented that, “President Obama faced two years of unremitting obstruction to his judicial nominees, creating a crisis in our courts that continues to this day. Under pressure from Supreme Court justices, other federal judges, concerned organizations, editorial pages, and a fed-up public, reforms were adopted by the current Senate to return to regular order and end the logjam. But now that five months have passed, it’s becoming increasingly clear that the pace of confirmations is not nearly fast enough and that, as the filibuster of Goodwin Liu shows, Republican obstruction has not ended. A commitment to ‘comity’ among Senators and an increased sense of urgency are welcomed, but our research shows that this President’s legacy and the health of our judicial system depend not on high-minded words, but on the very real need for significantly more presidential nominations and a much swifter confirmation process in the Senate.”

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The State of the Judiciary: President Obama and the 111^th Congress can be downloaded here .

Judicial Nominations in the 112^th Congress: January-April 2011 can be downloaded here .

A calendar revealing the pattern of presidential nominations, Senate Judiciary Committee hearings, and final Senate floor votes is available here .

Additional information about judicial nominations, including regular statistical updates and profiles of nominees can be found here.