The Nomination Gap In The Justice System

Hot on the heels of a pretty spirited discussion of the Obama Administration treatment of progressive nominees, both in the blog post here at Emptywheel and yesterday on Twitter, comes the reminder by Main Justice that there are no appointed, nor confirmed, US Attorneys in all of Texas:

Career prosecutors have run the four U.S. Attorney’s offices in Texas for more than a year. Obama has made one U.S. Attorney nomination in Texas thus far: state Judge John B. Stevens Jr., who withdrew from consideration for Eastern District of Texas U.S. Attorney.

The Senate has confirmed 66 of Obama’s U.S. Attorney nominees. There are 93 U.S. Attorney posts.

Now the framing of the report is a complaint by John Cornyn, which I have little sympathy for, and who has undoubtedly contributed somewhat to the impasse; but that said, the facts are pretty astounding.

Over a year and a half into the Obama Presidency, and still over 30% of the US Attorney positions remain unfilled or, even worse, still under the control of Bush/Cheney appointees. The percentage is only that low due to a recent surge in investitures of US Attorneys; for most of the current Administration’s term, the situation was even far worse than it is as of today.

Which led me to wonder exactly what the corresponding status was for federal judicial nominations. It is fairly bleak. There are 103 Federal judicial vacancies and, shockingly, on 48 of them even have so much as a nominee pending. 12% of the 876 total Federal judgeships are sitting vacant. In my own little nook of the world, the 9th Circuit, there are 13 total judicial seats vacant, and only three of them have even putative nominees.

The critical importance of filling judicial vacancies is explained very nicely in a current post by Gaius Publius at AmericaBlog that expands on my Progressive Nominations/Goodwin Liu post yesterday:

This matters for several reasons. One is that the current judiciary is overwhelmingly Republican-appointed and conservative (including Movement-Conservative):

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda. And controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.

Yet Obama has been cautious to the point of weird about reversing this trend. While news stories on this subject headline his lack of judicial confirmations, stories like this one also contain tales of his caution; Bloomberg:

A lot of groups are still waiting for this president to nominate someone who will really reshape the bench,” said Barbara Arnwine, executive director of the Lawyers’ Committee on Civil Rights in Washington. The group supports expanding legal protection for blacks and other minorities.

Gaius Publius is exactly right. In fact, reshaping the Federal judiciary away from the hard conservative Federalist society bent that has been installed and meticulously grown by the Reagan and two Bush Administrations was one of the primary rallying cries for Democrats, including the Obama campaign, during the 2008 election. And, yes, there has been significant and unified Republican obstructionism; that is absolutely a factor. The problem is that there has been little if any fight put up by the Obama Administration and instead mostly weak resignation.

And you have to wonder how the situation on nominations at the White House is going to get any better soon with this news:

White House Counsel Robert Bauer will assume responsibilities for lobbying, transparency, government reform and a host of other government operations issues once White House ethics adviser Norman Eisen departs for his new role as ambassador to the Czech Republic, senior administration officials confirmed Friday.

Since Bauer was supposedly the go to guru for nominations, and especially judicial nominations, It is hard to see how a major dilution of his time (he is already White House Counsel after all, which you would think might take up a lot of time) by adding a giant new portfolio on ethics compliance is going to help the already languishing White House efforts.

There are always excuses like the economy and the push for healthcare; but it does not excuse a failure to make a better effort. And with the losses in both houses of Congress universally expected this November the maximum time of strength for the Obama Administration has been squandered to an inexplicable extent. It is time for them to make good and get the vacancies in the justice system filled while they still can. The bonus is it is a move that would actually please and fire up their base.

UPDATE: A reader has conveyed off blog some information stated to be more up to date (even though the Federal Courts site I linked said it was current as of today’s date) and I want to post it here.

1. While the Administrative Office of the U.S. Courts lists the number of vacancies as of the date of the article as either 103 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx (used by bmaz) or 104 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx by my count after taking into account last week’s confirmations, as of the date of the article there were only 99 openings (as matters stand presently at least 3 more vacancies will occur later this month) although I have not checked to confirm that the confirmed circuit court and district court nominees have in fact taken their oath of office for their new positions (as Justice Kagan did on the 7th following her confirmation on the 5th). If the new judges have not taken their oaths of office, one could always argue that the positions for which they were confirmed are still vacant.

2. There are only 40 pending nominations http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/Materials111thCongress.cfm not 48.

Another site which may be useful and which appears to have up to date information is here: http://judicialnominations.org/

I will admit, I took my figures straight off the Federal Courts site and did not go count and tabulate districts and circuits individually. I don’t know which set of figures are the most accurate, so I am leaving them both here. Quite frankly it does not change the point of my post or conclusions one iota; I think it all demonstrates a problem with the Administration taking advantage of the opportunity to fill vacancies in the Federal bench (it is especially worse if there are really only 40 current nominees instead of 48 as I had).

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
  1. klynn says:

    It is time for them to make good and get the vacancies in the justice system filled while they still can. The bonus is it is a move that would actually please and fire up their base.

    I agree.

  2. der1 says:

    There’s very little that can be done, IMO, outside of shining a light on these problems. I came to that realization back in the Contract with America ’94 election, after that loss the look on George Mitchell’s and Dick Gebhardt’s faces told the story – the Democrats don’t have a long game nor know what to do when the Republicans and the right attack. Our government is dysfunctional.

  3. fatster says:

    Wouldn’t it be great to know what criteria are used inside the WH for “vetting” potential judicial nominees? And just imagine how our list of criteria would compare to theirs

    I’m not trying to be snarky or snide, bmaz, but I’m curious, and sadly so, as to what “base” they have that would get fired up. They had a base, and a very dedicated one, but they seem to have abused and abandoned that now.

    Thanks so much for continuing to sound the alarm on this key matter, bmaz.

      • fatster says:

        I agree. I wasn’t being snarky–I just found it interesting that Leahy’s proposal made the news just as you had posted your article. Something else did, too, which I’ll link to below.

  4. fatster says:

    She didn’t mention the problem with Obamarahma’s seeming lack of interest in pushing for approval of their nominees, Ginsberg did have a few things to say about this issue, too.

    In S.F., Ginsburg addresses standoff on appointments

    LINK.

  5. eCAHNomics says:

    Over a year and a half into the Obama Presidency, and still over 30% of the US Attorney positions remain unfilled or, even worse, still under the control of Bush/Cheney appointees.

    My bold. And the diff would be? Unfilled is the best possible alternative, IMO.

    • bmaz says:

      It kind of depends on who the First AUSA or whoever was that assumes the Acting USA status; might be good, might be bad. On the whole though, these are offices that need an appointed, confirmed and unquestioned leader.

        • bmaz says:

          Many of his USA appointments have been pretty good actually; his guy here is Arizona is fine. Most I have read about looked okay, only a few that looked maybe shaky. Problem how unmotivated the WH has been in getting them nominated and confirmed. Now the judicial nominations have been a little more erratic so far, but on the whole not bad. The best ones like Liu and Chen died from neglect though.

          • eCAHNomics says:

            I bow to your more informed opinion. Mine has been heavily colored by Dawn Johnson, and the ones you mention

            Liu and Chen.

    • eCAHNomics says:

      From which she concludes that wingnuts running on amending the constitution are silly. Think she’s missing the point, which is to set the agenda, and the vocabulary to describe it, not to actually accomplish any of that.

  6. eCAHNomics says:

    Or put another way. O’s failure to put forth nominees could be evidence that he is perfectly happy with the status quo.

    • bmaz says:

      It is hard to know exactly, but in the vast majority of the cases, there just are not nominees that have been made and pending. For example, as I said in the post, of the 103 vacant Federal judicial seats, 55 of them have no nominee whatsoever.

  7. eCAHNomics says:

    Oh, bmaz, I’d love a post on federal judges appointed by O. Or a link to one I’ve missed. In particular, I’m interested in whether they’ve been to the ‘education’ indoctrination seminars run by the usual wingnut $$.

  8. Larue says:

    Interesting info Bmaz, thanks for all your work compiling it and bringing it to us readers.

    It seems glaringly evident to me this issue follows a similar pattern that Obama and his admin have followed from day one when Rahm was annonced to his position.

    The status quo remains, that’s the priority.

    Aid only goes to corporate bodies including Wall Street in general.

    Waffling, and that’s the ONLY thing you can call this delay of appointments (I don’t buy ANY admin excuses or explanations whatsoever and why SHOULD I given their recent history of lying), waffling keeps any potential for change that might benefit we the people and harm the corporate free for all they have at the trough of our lives smothered and buried out of reach of any hope.

    No changey, no hopey, no appointments.

    Choke off looking back, kill any potential for doing good now and ensure there’s no threat to the corporate stasis.

    I’d say the dearth of appointments is perfectly on plan for Obama and the corporate overlords and is going just fine for them both.

  9. orionATL says:

    they ( the white house) are keeping them open as bargaining chips to bargain with texas senators and congresscritters.

    the same as they (the obama whitehouse) are keeping the two partisan, vindictive, incompetent, and
    professionally dishonest usa’s in alabama in office
    in order to bargain with sen sessions ( who might otherwise be indicted by a new usa).

    this is just par for the course for “hard nosed chicago pols” like buttercup obama.

  10. bmaz says:

    Okay one and all, a reader has conveyed off blog some information stated to be more up to date (even though the Federal Courts site I linked said it was current as of today’s date) and I want to post it here.

    1. While the Administrative Office of the U.S. Courts lists the number of vacancies as of the date of the article as either 103 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx (used by bmaz) or 104 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx by my count after taking into account last week’s confirmations, as of the date of the article there were only 99 openings (as matters stand presently at least 3 more vacancies will occur later this month) although I have not checked to confirm that the confirmed circuit court and district court nominees have in fact taken their oath of office for their new positions (as Justice Kagan did on the 7th following her confirmation on the 5th). If the new judges have not taken their oaths of office, one could always argue that the positions for which they were confirmed are still vacant.

    2. There are only 40 pending nominations http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/Materials111thCongress.cfm not 48.

    Another site which may be useful and which appears to have up to date information is here: http://judicialnominations.org/

    I will admit, I took my figures straight off the Federal Courts site and did not go count and tabulate districts and circuits individually. I don’t know which set of figures are the most accurate, so I am leaving them both here. Quite frankly it does not change the point of my post or conclusions one iota; I think it all demonstrates a problem with the Administration taking advantage of the opportunity to fill vacancies in the Federal bench (it is especially worse if there are really only 40 current nominees instead of 48 as I had).

  11. Hoofin says:

    I have no particular great love for federal judges, but I have to applaud the fact that someone is finally taking note that Obama isn’t getting his.

    Already 18 months into the administration, so many of these critical positions are simply unfilled. Simply because the losers aren’t happy with the result of the 2008 election.

    With constant obstruction, they are trying to make the winners not happy, either. And doing a good job of it . . .