Empty Courtrooms in Obama's First Term: A Slow Start on Judicial Nominations Magnified Many Times Over By Republican Obstruction

As the U.S. Senate departs for the year, it leaves behind unfinished business: four long-pending circuit court nominations and 70 unfilled vacancies in the federal courts, with another 20 upcoming vacancies already announced.

President Obama ends his first term with more federal judicial vacancies than when he began. There are a number of reasons for this failure to efficiently fill seats in the federal courts, including the president's slow start in making nominations in the early years of his first term. But that slow start was magnified many times over by Senate Republicans' extreme intransigence, leading to a historic vacancy crisis in our federal courts that has persisted long after the White House picked up its pace on nominations. In an effort to keep the courts dominated by George W. Bush-nominated conservatives and to stall the president's agenda wherever possible, Senate Republicans have stymied the nomination and confirmation of federal judicial nominees at every step in the process and at an unprecedented scale.

The result was that almost every one of President Obama's first-term judicial nominees was delayed in the Judiciary Committee, and once approved by the Committee, waited an average of three times as long for a confirmation vote from the full Senate as did President Bush's first-term nominees.

That persistent obstruction led to record vacancy levels in the federal courts. The 55 vacancies at the start of Obama's presidency jumped to 90 over the course of his first year in office, and they have rarely gone below that number since. Notably, the president also ends his first term without confirming a single judge to the enormously influential Court of Appeals for the D.C. Circuit, four of whose 11 seats are now vacant.

There were, of course, bright spots in the past four years of judicial nominations. Two extraordinarily qualified women earned seats on the Supreme Court. Sonia Sotomayor became the nation's first Latina Supreme Court justice, and Elena Kagan brought the total number of women on the Court to three for the first time in history.

President Obama also brought unprecedented diversity to the lower federal courts. 41 percent of President Obama's confirmed judicial nominees have been women - the highest percentage in history - and he has now put more women on the federal bench in four years than President Bush did in eight. President Obama has also nominated a higher percentage of African Americans, Hispanics, and Asian Americans than any previous president, ensuring that our federal courts are beginning to reflect the country they serve. In addition, President Obama has put more openly LGBT people on the federal bench than all of his predecessors combined.

But this effort to bring talented, fair-minded Americans with a diversity of backgrounds to the federal bench has been hampered by a consistent and needless slow-walking of nominees in the U.S. Senate. This memo outlines the obstruction tactics that have resulted in a persistently high vacancy rate in the federal courts and needless delays for Americans seeking justice.

Abuse of the Filibuster and Filibuster Equivalents

The most well-known tool of Senate obstruction - the filibuster - has been abused to a new level by the Senate GOP in the last two Congresses. In 2005, many Senate Republicans loudly proclaimed that it was unconstitutional - not just a bad idea, but actually a violation of the United States Constitution - for Democratic senators to filibuster a small number of George W. Bush's circuit court nominees on the well-documented grounds that they were dangerously out of the mainstream. A few others joined the bipartisan "Gang of 14," agreeing that filibusters of judicial nominations were only appropriate under undefined "extraordinary circumstances." After January 20, 2009, they threw their claimed principles to the wind and made clear just what constitutes "extraordinary circumstances" in their book: being nominated by a Democratic president.

The Senate GOP expanded the use of filibusters to stall the confirmation of consensus circuit court nominees. Of the ten circuit court nominations on which Democrats have had to file cloture in order to break GOP obstruction, half had cleared the Judiciary Committee with overwhelming bipartisan support, and half went on to be confirmed with similarly overwhelming bipartisan support. In one typical example, Republicans filibustered the nomination of Adalberto Jordan of Florida to sit on the Eleventh Circuit Court of Appeals, blocking a vote for four months after he was approved unanimously by the Judiciary Committee. (In contrast, the average confirmed circuit court nominee during President Bush's first term waited only a month for a floor vote.) Jordan, who had the strong support of Florida Republican Sen. Marco Rubio, would become the first Cuban American to sit on the Eleventh Circuit. Once the filibuster was broken 89-5, he was confirmed in a 94-5 vote. No apologies or explanations for the filibuster were ever given.

Notably, the Senate GOP has been willing to filibuster even noncontroversial district court nominees, who historically have faced little partisan resistance on their way to trial court positions. The majority party had to move to end a filibuster of one district court nominee during the Clinton administration and one during the George W. Bush administration. In contrast, in just four years of President Obama's administration, the majority has been forced to file twenty cloture petitions to end filibusters of district court nominees, almost all of whom were eventually confirmed unanimously or near-unanimously.

And this is just obstruction that ended in cloture votes. Because scheduling a vote in the Senate requires unanimous consent, Senate Republicans have been able to quietly delay votes on judicial nominees for months without stating a reason. These quiet delays - which effectively amount to filibusters but are not formally recorded as such - have led to a tremendous and damaging slowing of the confirmation process. President Obama's circuit court nominees have, on average, been forced to wait 135 days between committee approval and a vote from the full Senate. In contrast, President Bush's first-term circuit court nominees waited an average of just 37 days for a Senate vote. Similarly, President Obama's district court nominees have waited an average of 103 days for a Senate vote, in contrast to just 35 days for Bush's first-term nominees.

Three of the four currently pending circuit court nominees have been held up by this type of silent filibuster: the GOP has simply refused to allow confirmation votes for Patty Shwartz (Third Circuit, waiting for a vote since March), Richard Taranto (Federal Circuit, also waiting since March), and William Kayatta (First Circuit, waiting since April). The fourth - Robert Bacharach - has been waiting "only" since June. Republicans defeated a cloture petition to end the filibuster of Bacharach's nomination, even after his home-state Republican senator Tom Coburn said that such a move would be "stupid." Not one of these nominees is opposed by their home state senators. In fact, two - Maine's Kayatta and Oklahoma's Bacharach - come from states where those supportive senators are both Republicans. All four nominees have received the highest possible evaluation of their qualifications by the ABA. They simply are not controversial. Their "problem" is that they are mainstream jurists nominated by President Obama.

Creative Obstruction

Filibusters and obstruction tactics on the Senate floor are the most visible types of Senate gridlock, but the GOP's obstruction of President Obama's first term judicial nominees went much deeper.

It started with the very process of finding potential nominees. President Obama has consulted extensively with home state senators to find qualified federal judicial nominees. But despite these efforts, a number of nominees are stuck in the Judiciary Committee awaiting hearings because the nominee's home-state senators have refused to give their permission for the nomination to go forward. In committee jargon, these senators have not signed the "blue slip" signaling a formal go-ahead.

For instance, the people of Georgia can thank their own senators for two long-open district court vacancies. In January 2011, President Obama nominated Linda T. Walker and V. Natasha Perdew Silas to fill two officially-designated emergency vacancies in Georgia's Northern District. Sens. Johnny Isakson and Saxby Chambliss opposed Silas but never said why. Nevertheless, that was enough to keep her from even getting a hearing before the Judiciary Committee. And since Silas's nomination was linked to Walker's, the Georgia senators' machinations wrecked both nominations. Similarly, without giving a reason, Isakson and Chambliss have not submitted their blue slips for the undoubtedly qualified Jill Pryor for a Georgia-designated Eleventh Circuit seat, leaving her nomination in limbo for 10 months and counting.

In 2011, freshman Wisconsin senator Ron Johnson refused to submit his blue slips when President Obama renominated a circuit and district court nominee who had not gotten votes in 2010. These were nominees who had been recommended by a bipartisan commission, and no other newly elected senator that year blocked similar renominations in their state. As with Georgia's district court nominations, these were returned to the White House, and the seats remain vacant and without nominees.

This summer Louisiana Sen. David Vitter blocked the committee from considering the nomination of Shelly Dick to a district court seat she'd been nominated to back in April, unilaterally deciding that the Judiciary Committee should not consider her nomination because it was too close to the presidential election. After Obama's victory, Vitter relented, presenting her to the committee with his full support last month (but too late to be confirmed in 2012, as she should have been). In Nevada, Sen. Dean Heller has blocked a committee hearing on Elissa Cadish for reasons widely condemned as ludicrous: before the Supreme Court's 2008 gun control decision in Heller, she correctly described to a newspaper what was then the state of Second Amendment law.

Unfortunately, even once nominees had a chance to testify before the Judiciary Committee, they were not free from stalling tactics. Ranking Member Chuck Grassley, like Ranking Member Jeff Sessions before him, took advantage of a rule allowing the minority party to postpone committee votes on nominees to stall all but five of the nominees the committee considered - a full 97% of the nominees that have come before the committee for a vote. These nominations were delayed anywhere between one and six weeks before heading to further delays on the Senate floor.

Empty Excuses

In attempting to defend the indefensible, Senate Republicans have been flaunting faulty statistics and nonsensical comparisons. Criticized last month for his consistent use of stalling tactics, Sen. Grassley claimed that the Senate had confirmed more nominees in President Obama's first term than in a "similar period" in Bush's presidency. The "similar period" he referred to was in fact a "dissimilar period" - he cherry-picked numbers in order to compare President Obama's first term with George W. Bush's second term, in which the Senate confirmed fewer nominees simply because there were fewer vacancies to fill. And in any event, Bush's second-term confirmed nominees, just like his first, got a floor vote on average far more quickly than Obama's.

A Second-Term Focus on the Courts

One of the Senate's key duties is to ensure the health of the nation's judicial branch. But the Republican minority has increasingly ignored its duty to "advise and consent," instead using judicial nominees as pawns in politically-motivated gridlock. This has resulted in a vacancy crisis that has left federal courts across the country understaffed and unable to provide swift access to individuals and businesses seeking their day in court. It has also meant that the right-wing ideology that President Bush required in his judicial nominees continues to dominate the federal courts.

Elections have consequences. The American people once again decisively chose President Obama as the person we want to be choosing our federal judges. He has made an effort to name fair jurists with broad bases of support and diverse backgrounds. Senate Republicans have a responsibility to take their "advise and consent" duties seriously, considering nominees on their merits and moving the confirmation process as efficiently as possible in order to ensure a court system that works for the Americans who depend on it.

President Obama has signaled that he will make judicial nominations a priority in his second term. The Senate must do better in the next four years to ensure that Americans have a federal court system that works.