David G. Savage of the Washington Bureau of the Los Angeles Times writes, "Obama struggles to nominate, confirm federal judges."
In September 2005, John G. Roberts Jr., a judge on the U.S. Court of Appeals for the District of Columbia, moved up a few blocks onto Capitol Hill to become chief justice of the United States. His seat on the appeals court has remained unfilled ever since.
The vacant seat symbolizes the problems that President Obama had in his first term in quickly nominating judges and winning even routine confirmations in the face of a determined Republican minority. He has had fewer judges confirmed than any first-term president in a quarter of a century, and he is the first chief executive unable to appoint anyone to the powerful D.C. Circuit Court of Appeals, which decides challenges to federal regulations.
Firmly in Republican control thanks in part to three appointees of President George W. Bush, the D.C. Circuit recently struck down clean-air rules put forth by the Obama administration for coal-burning power plants. It also threw out a "shareholder democracy" rule that would have made it easier for investors to vote for independent directors of public corporations. Both rules were strongly opposed by business interests.
Though the Constitution says judges are to be approved on a majority vote, the Republican minority used the Senate's 60-vote filibuster rule to slow or block confirmation of Obama's nominees. They included Caitlin Halligan, a former New York state solicitor general, who was nominated in 2010 to fill Roberts' seat on the D.C. Circuit.
Republicans said they opposed Halligan because, as a state attorney, she had argued in support of New York's suit against gun manufacturers. The National Rifle Assn. urged senators to block her, and she won only 54 votes, not enough to end a filibuster.
Obama said he was "deeply disappointed" at "the Republican pattern of obstructionism." But the filibuster was not invented by the Republicans.
When the 112th Congress adjourned last week, the Senate had approved 175 of Obama's judges. By comparison, Bush had 206 judges approved in his first term, and President Clinton had 204 judges confirmed during his first four years.
The number of court vacancies rose during Obama's term, from 57 to 75. During Bush's term, vacancies were reduced from 81 to 41.
"Obama's Federal Judiciary Failures," is Herman Schwartz' commentary in the Nation.
Alliance for Justice (AFJ) reports that President Barack Obama will likely finish his first term with many more vacancies in the federal judiciary than when he was inaugurated. Today, seventy-five seats on the federal bench remain open, compared with fifty-three in January 2009. The shortage of judges has generated a backlog such that approximately thirty courts have been officially designated as being in a state of “judicial emergency”—that is, more cases per judge than he or she can handle fairly and efficiently—compared with only eighteen in 2009, thereby leaving important issues of law unsettled and many injuries unredressed.
Only 80 percent of the president’s district and circuit court nominees have been confirmed by the Senate. In comparable periods in their presidencies, George W. Bush and Bill Clinton had confirmation records of 90 percent and 84 percent, respectively. Obama has also nominated fewer judges and done so much later than Bush or Clinton did during their first terms.