In the 111th Congress, Senate Republicans have consistently used partisan tactics to delay the confirmation of President Obama’s qualified nominations to the district and circuit courts of the United States federal judiciary. The Senate has confirmed only 17 of President Obama’s district and circuit court nominees this Congress, fewer than the 18 nominations currently pending on the Executive Calendar.
By this point in President Bush’s first term, with a Democratic majority, the Senate had confirmed 41 circuit and district court nominees. Only 12 of President Obama’s circuit and district court nominations were confirmed in his first year in office. This is the lowest number of judicial confirmations in the last fifty years, and reflects the strategy of Senate Republicans to use procedural tactics to prevent the confirmation of President Obama’s non-controversial judicial nominees.
There are more than 100 vacancies in the district and circuit courts. These vacancies are adding to the mounting caseload that already exists for sitting judges. Unfortunately, Senate Republicans are exacerbating the backlog of cases in the federal judiciary and are relying on partisan politics to obstruct President Obama’s judicial nominations.
Republicans Are Obstructing Highly Qualified and Noncontroversial Nominations
In 2009, 63 percent of President Obama’s district and circuit court nominations did not receive final action and were pending at the end of his first year in office. This is by far the highest number in the past sixty years. By comparison, only 12.5 percent of President George Bush’s nominations did not receive final action in his first year. [CRS memo on file and Judiciary Committee data]
Senate Republicans have failed to maintain the long tradition of confirming the President’s non-controversial nominations in a timely manner. Instead, President Obama’s non-controversial and highly qualified nominees have faced uncertainty and delay. Republicans continually refuse to reach time agreements to vote on nominations.
· David Hamilton of Indiana, who was nominated to the Seventh Circuit by President Obama in March 2009, was reported by the Judiciary Committee in June 2009 by a vote of 12 to 7. His nomination received the support from the longest-serving Republican in the Senate, Dick Lugar of Indiana. The Senate Republican leadership filibustered Judge Hamilton’s nomination, President Obama’s first judicial nomination, for over five months. The Senate invoked cloture on his nomination 70 to 29 on November 17, 2009.
· Judge Beverly Baldwin Martin of Georgia, who was nominated to the Eleventh Circuit by President Obama in 2009, was reported by the Judiciary Committee in July 2009 by a voice vote with no dissent. Republicans stalled Senate action on her nomination, even though she had the full support of both Republican Georgia Senators. Judge Martin waited 132 days on the Executive Calendar before Republicans allowed an up-or-down vote on her nomination. When the Senate finally voted on her nomination, she was confirmed 97 to 0.
· Judge Barbara Keenan of Virginia, who was nominated to the Fourth Circuit by President Obama in 2009, was reported by the Judiciary Committee in October 2009 by unanimous consent. Unfortunately, Republican opposition prevented her nomination from moving forward and the Senate was required to invoke cloture to end a filibuster of her nomination. When the Senate finally voted on Judge Keenan’s nomination in March 2010, after 124 days on the Executive Calendar, she was confirmed 99 to 0.
Senate Republicans returned two of President Obama’s district court nominations. Senate Republicans returned two district court nominees to President Obama in December 2009, nominations which had been reported favorably by the Senate Judiciary Committee on party line votes (12-7). The Judiciary Committee has reported those nominations a second time by party-line votes, as well as a third district court nominee by a party-line vote. There was only one party-line vote in Committee on a district court nominee during eight years of the Bush Administration and yet there have already been three for President Obama’s nominees. None of President Bush’s judicial nominations were returned to him at the end of his first year.
Republican Delay Tactics Are Creating Gridlock and Inefficiency
Long delays and extended vacancies are creating a mounting caseload for an overextended federal court system. The federal judicial system is already burdened. In 2008, the average caseload for a three-judge appeals panel was 1,049 per judge. [Alliance for Justice, Justice Can't Wait] With mounting delays and absences, judges sitting in courts with vacancies are seeing their caseloads grow to unmanageable levels.
Confirming non-controversial nominations in regular order could alleviate some of these problems. If the Senate were able to confirm President’s Obama’s current nominees, the vacancies could be filled immediately and caseloads could be more evenly distributed. Litigants face increasing uncertainty as the length of time between a trial and disposition of a case grows. Senate Republicans should allow up-or-down votes on the Senate floor on all nominations soon after they have cleared the Senate Judiciary Committee.
Tactics of delay and obstruction by Senate Republicans have caused a rise in “judicial emergency” vacancies. There are currently 31 vacancies classified as “judicial emergencies” based on the size of the caseload in that court or the amount of time the seat has been empty. [Judiciary Committee data] The longer the vacancies remain open, the more destructive the situation becomes and the longer citizens will be forced to wait for justice.
Democrats Confirmed Non-Controversial Judges During Bush Administration
Senate Democrats did not prevent President Bush’s non-controversial nominees from moving forward. The Senate confirmed 28 of President Bush’s judicial nominees in his first year in office,41 of his judicial nominees by March 15 of his second year in office, and 100 in the 17 months the Democrats had a majority during the first two years of President Bush’s first term. So far, during the entire 111th Congress, the Senate has confirmed only 17 of President Obama’s circuit and district court nominees.
During President Bush’s last year in office, with Democrats in the majority, the Senate reduced judicial vacancies to as low as 34 open seats, even though it was a presidential election year. The Senate reduced vacancies in nine of the 13 federal circuits in 2008.