Obama’s Judicial Restraint

The National Law Journal reports that the White House is largely to blame for the high number of vacancies on the federal bench.

Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.

But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.

Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)

At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.

And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.

This is not a new observation, but it’s worth repeating. Without question Republicans have made it difficult to move judicial nominees, much as Democrats did when Presidents Bush and Bush were in the White House. Republicans have also resorted to the filibuster, prompting some on the other side to reconsider its use for judicial nominations. GOP opposition may have prompted more careful and extensive vetting and discouraged the naming of controversial nominees. In any event, obstruction of nominees is now the norm — and this norm is unlikely to change unless there is a pre-election deal, perhaps like the one I outlined here. Until such a deal can be made, judicial nominees will get slow-walked to the bench no matter which party is in charge.