Judicial Nominations
Jeff Miller
Continuing a pattern begun in the 111th Congress, fili-busters were a frequent weapon of choice this year for the Senate minority to block or delay many of President Obama’s judicial nominees. As a result, the pace of Senate confirmation of judicial nominees remained slow. At the end of the 112th Congress, the Senate had confirmed only 171 of the president’s nominees to the district and appellate courts, considerably less than the number the Senate confirmed at this point in the Clinton or George W. Bush presidencies. Of the 90 current or announced vacancies, 27 of them were designated as “judicial emergencies” in which there have not been enough judges to handle the caseload. Obama also ended his first term without a confirmed judge to the important D.C. Circuit Court of Appeals, which had three of its 11 seats vacant.
In an effort to speed up the pace of confirmations, Senate Majority Leader Harry Reid, D. Nev., announced in early March that he would hold votes on 17 pending nominees, with the hope of forcing Republicans to either publicly answer for their use of procedural stalling tactics or stop using them. Before any votes took place, however, Senate Republicans agreed to vote on 14 of the pending nominees by May 7. While this deal represented the approximate number of judges who probably would have been confirmed anyway, advocates hoped it would strengthen Reid’s hand if Republicans continued to slow the pace of pending nominees.
To increase public awareness of the impact of judicial vacancies on the nation’s justice system, and the dire need for the Senate to increase the rate of judicial confirmations, The Leadership Conference on Civil and Human Rights and a number of its partner organizations urged the White House to hold a high-profile meeting on the issue. On May 7, more than 150 prominent lawyers, academics, and other legal experts came to Washington, D.C., to weigh in with the president, his senior staff, and Senate offices. Attorney General Eric Holder was among the participants who met with the entire delegation, while a smaller group met with the president to encourage him to raise the profile of the issue.
To the dismay of advocates, however, Senate Republicans announced in June that they would no longer agree to any more confirmations of circuit court judges through the end of 2012, and suggested there would be a similar blockade of district court judges. In July, they filibustered the confirmation of Robert Bacharach, a nominee to the Tenth Circuit, even though he had the strong support of his home-state senators, Tom Coburn and Jim Inhofe, R. Okla. Despite their strong support of the nomination, both senators voted “present” rather than express their opposition to the filibuster.
Even with the obstruction, Obama succeeded in bringing unprecedented diversity to the federal courts. More than 40 percent of Obama’s confirmed judicial nominees were women, 17 percent were African-American, 12 percent were Hispanic, 7 percent were Asian American, and three were openly LGBT.
With a second term secured, Obama will have an opportunity to influence the makeup of the courts for generations, and he moved quickly on the first day of the 113th Congress to renominate seven circuit and 24 district court nominees, many of whom have been waiting for months for a yes-or-no confirmation vote on the Senate floor. But his ability to impact the courts will still depend to a large degree on how willing the Senate minority is to abandon its obstructionist tactics and return to the tradition of considering judicial nominees on their merits as part of the Senate’s routine business.
Jeff Miller is the vice president for communications for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund
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