Judicial Obstruction During President Obama's First Two Years: Updated Reports

As a service to those writing about the crisis of judicial nominations during the final weeks of the 2010 lame-duck Congress, Alliance for Justice is reissuing and updating several recent reports on the record of Republican obstruction and the increasingly dire number of judicial emergencies plaguing the federal courts.

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Judicial Obstruction During President Obama’s First Two Years:
A Compilation of Alliance for Justice Reports

During the Obama Administration’s first two years, Republicans in the Senate have implemented a strategy to delay and obstruct his judicial nominations to the Courts of Appeals and District Courts, contributing to the severe staffing crisis in the federal courts. The Republican tactics are no mystery. As Minority Leader Mitch McConnell (R-Ky.) has told the New York Times, “I am amused with [Democrats’] comments about obstructionism. . . . I wish we had been able to obstruct more.” (1)

The level of Republican obstructionism during the first two years of the Obama Presidency is unprecedented, as demonstrated in the attached Alliance for Justice reports. As of November 23:

• The rate at which President Obama’s judicial nominees have been confirmed is significantly lower than it was for the five previous presidents, both in aggregate numbers (41 judges) and in the percentage confirmed (­43% of nominations).
• President Obama has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president in American history.
• During President Obama’s first two years, the number of judicial vacancies has nearly doubled, from 55 to 108, whereas under Presidents Bush and Clinton, the number of vacancies declined from 80 to 59 and from 107 to 68, respectively, in the same period.
• The political motivation for the Republicans’ tactics of delay and obstruction are made clear by the fact that 16 of the 23 nominees currently being blocked on the Senate floor were reported out of the Senate Judiciary Committee on unanimous, bipartisan votes, and another sailed through with only one Republican in opposition.
• The number of “judicial emergencies,” as defined by the Administrative Office of the U.S. Courts, has dramatically risen from 20 at the beginning of the Obama term to 50. Thirty states face the situation where there are not enough sitting judges to handle the case load, causing serious delays and jeopardizing justice for plaintiffs and defendants. Many of those states have Republican Senators.
• Of the 23 nominees who have been blocked from receiving final floor votes after being approved by the Judiciary Committee, 11 would fill seats considered to be “judicial emergencies.” Overall, there are 54 nominees pending, 31 of whom would fill seats considered judicial emergencies. (2)
• Senate Republicans have placed secret holds on each of President Obama’s judicial nominees currently on the Senate floor, even on those that are uncontroversial and have the support of Republican home-state senators. Secret holds have been repeatedly placed on all of President Obama’s nominees to obstruct the confirmation process. (3)
• President Obama’s nominees are the most diverse in American history. In fact, 44% of his nominees are female, doubling the rate of women appointed in the Bush Administration, and 42% are African-American, Hispanic, or Asian-American, including Goodwin Liu and Ed Chen, both of whom were rated unanimously well-qualified by the American Bar Association and who would serve on courts where Asian Americans have been historically underrepresented.. Only 18% of George Bush’s appointees were non-white.
• At the end of the Bush Administration, 59.5% of all active federal judges had been appointed by Republicans, but even after almost two years of a Democratic administration, Republican appointees still accounted for ­58.7% of judgeships, reflecting the glacially slow pace of confirmations in President Obama’s first term and exposing the goal of Republican tactics.

(1) Carl Hulse, No Reveling for Democrats, Despite Achievements, N.Y. Times, Aug. 14, 2010, available at
http://www.nytimes.com/2010/08/15/us/politics/15memo.html?_r=2&scp=5&sq=mitch%20mcconnell&st=cse.

(2) The Senate Judiciary Committee has scheduled an Executive Business Meeting for December 1, 2010, at which the Committee could report an additional 12 nominees to the floor.

(3) For example, on February 5, 2010 Senator Sessions placed a secret hold on all of Obama’s judicial nominees, http://thehill.com/blogs/blog-briefing-room/news/79923-reports-shelby-places-blanket-hold-on-obama-nominees. In June, 2010, NPR learned that secret holds again blocked all Obama nominees, http://www.npr.org/templates/story/story.php?storyId=126528338.

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This information, and more, can be found in the following Alliance for Justice reports, all but the last of which have been updated through today’s date, and which are available online:

• Judicial Nominations in the Clinton, Bush, and Obama Administrations: Which One of These is Not Like the Others?
  
• Judicial Selection Snapshot
  
• Judicial Emergencies Report
  
• Judicial Nominees Being Blocked by Republican Senators
  
• The State of the Judiciary: The Obama Administration: The First 20 Months