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Throughout President Obama’s nearly five years in office, the federal courts have experienced an unprecedented vacancy crisis.  Congress returned from the August 2013 recess to a federal judiciary with 109 current and future vacancies, 45 pending nominees, and more than 60 vacancies without nominees, almost exclusively concentrated in states with at least one Republican senator.  While several major Senate showdowns in the past year have set the stage for progress in filling judicial vacancies, and more than half of the current vacancies have nominees pending either on the Senate floor or in the Senate Judiciary Committee, there are more unfilled vacancies as of this report than there were as of AFJ’s last State of the Judiciary Report in March 2013.

Although the numbers appear bleak, the situation as of October 2013 is in some ways less dire than at the start of President Obama’s second term.  Nine nominees await votes on the Senate floor, and there is a backlog of 42 nominees awaiting Judiciary Committee processing.  President Obama has put forth a full slate of nominees to the D.C. Circuit Court of Appeals, each of whom was given the highest possible rating by the American Bar Association.  Nominees are pending for 19 of the 37 vacancies classified as “judicial emergencies.”

Senate Republicans, including Judiciary Committee Ranking Member Chuck Grassley (R-IA), have made the misleading claim that Republicans have only blocked two of President Obama’s nominees: Caitlin Halligan and Goodwin Liu.  This cherry-picked statistic masks the full extent of Republican obstructionism of judicial nominees and confirmations. In total, 15 nominees have been forced to withdraw from consideration after Republicans blocked a confirmation vote, sometimes after publicly agreeing to support a nominee.  A much more pervasive—and surreptitious—form of obstruction has occurred through the threat of withholding blue slips (discussed in more detail below) for qualified nominees.  No nominee who lacks the support of both home-state senators has been successfully confirmed, and it has been White House practice to avoid nominating any individual who will not be supported by their senators.  This has allowed Republican senators to keep judicial vacancies unfilled for long periods of time—in some cases, over 1,000 days—without any public accountability.  Brian Davis, Rosemary Marquez, Jennifer May-Parker, Jill Pryor, and William Thomas are all pending nominees whose confirmations have been delayed for months or even years due to Republican senators withholding blue slips.  Each of these nominees has been rated qualified or well-qualified to serve as a federal judge by the American Bar Association.

As President Obama has nominated individuals to vacancies, a pattern has become increasingly clear: vacancies without nominees are more prevalent, and more persistent, in states with at least one Republican senator.  As of our last report, 25% of current vacancies without nominees were in states with two Democratic senators.  That number has dropped to 7% as of October 22, 2013.  The Republican senators who refuse to cooperate with President Obama to fill the vacancies in their states must be held to task for the obstructionism that ultimately is most harmful to their own constituents.

In the short-term, the Senate needs to confirm all of the 9 nominees currently pending on the Senate floor, especially President Obama’s nominees to the D.C. Circuit Court of Appeals. With the exception of the D.C. Circuit nominees, all of the nominees currently pending on the Senate floor were voted out of the Judiciary Committee without opposition.  Furthermore, four nominees—Brian Davis, Rosemary Marquez, Jill Pryor,  and William Thomas—still await full consideration by the Committee, despite being nominated during President Obama’s first term and renominated immediately at the start of the 113th Congress.  These nominees remain trapped in the Committee because Senate Republicans in Florida, Arizona, and Georgia have refused to return—or significantly delayed returning—blue slips, without voicing any legitimate justification for withholding support.

In brief, this report documents that:

  • During President Obama’s time in office, current vacancies have risen by 65%. This trend stands in stark contrast to the comparable point in President Clinton’s and President Bush’s second terms, when vacancies had declined by 35% and 39%, respectively. [See infra, page 14]
  • More than 10% of all Federal judgeships are vacant.  Judicial vacancies are more than double what they were at this point in President George W. Bush’s second term.  [See infra, page 14]
  • Overall, states with at least one Republican Senator account for more than 90% of all current vacancies without nominees, and states with two Republican Senators account for 51% of all current vacancies without nominees.
  • Texas and Pennsylvania together account for  50% of all current circuit court vacancies without nominees, over 39% of all current district court vacancies without nominees, and over 41% of total current vacancies without nominees.
  • The number of seats considered to be “judicial emergencies” has risen by 85%, from 20 at the beginning of President Obama’s term to 37. [See infra, page 14]
  • President Obama’s nominations have brought near parity between Democratic-appointed judges and Republican-appointed judges.  Since the end of the Bush Administration, the percentage of Republican-appointed circuit court judges dropped from 61.3% to 49.1%, and the percentage of Republican-appointed district court judges dropped from 58.6% to 50.3%. [See infra, page 15]
  • The president has appointed the highest percentage of women (42%) and minorities (38%) in history. [See infra, page 6]
  • There are more pending nominees (51) than current vacancies without nominees (41).

President Obama, now almost a year into his second term, has sent well-qualified nominees to the Senate for consideration, almost none of whom have faced substantive opposition from Republicans in the Senate.  It is time for Republicans to allow these nominees to move forward, clear the backlog of pending nominees, and work with the President to fill the remaining vacancies without nominees, which are so heavily concentrated in states they represent.  In the absence of increased cooperation, it may be time for the White House, the Senate Judiciary Committee, and the full Senate to reconsider the various senatorial courtesies throughout the nomination and confirmation process that have been too often abused as opportunities for obstruction.  A functioning, fully-staffed judiciary is a bedrock of American democracy, and a minority in the Senate should not be able to keep the federal bench from operating at full capacity.