John Sides and Jon Bernstein have both weighed in recently “here”:https://themonkeycage.org/2011/02/the_empty_bench_vetting_and_wh.html and “here”:http://www.nytimes.com/2011/02/09/opinion/09Bernstein.html?_r=1&ref=opinion on what Jon Bernstein has called the “Empty Bench Syndrome”– the poor record of the White House and Senate in nominating and confirming judges to the federal bench. Plummeting confirmation rates of course are not “new”:https://themonkeycage.org/2011/01/post_259.html. But as Jon importantly noted, the Senate is not entirely to blame: Unless the White House submits a nomination for a vacant judgeship, there’s little the Senate can do to fill the empty seat. Appropriately, Jon then noted the severity of the current situation: In early February, the White House had submitted only nine nominees for the 17 Court of Appeals vacancies (53%) and only 41 nominees for the 85 District Court vacancies (48%). After some Fenno-style “soaking and poking”:politicalscience.case.edu/fennoapsr.pdf in his local Whole Foods, John (Sides) then observed that vetting of potential nominees was likely a critical bottle neck in slowing down the White House’s selection of nominees.
Although the White House’s nomination pace is certainly sluggish, I’m not so sure that the current vacancies are the best data on which to judge the Obama administration’s record. Instead of focusing on current vacancies and the number of nominations submitted to the Senate since the start last month of the 112th Congress, I prefer to take account of the administration’s record over its first two years in office. Once we adjust the time frame, the White House’s record isn’t quite so dire. Russell Wheeler and I explore the trends “here”:http://www.brookings.edu/papers/2011/0216_judicial_emergencies_wheeler_binder.aspx.
In brief, over the course of the 111th Congress (2009-2010), there were 32 vacant Court of Appeals judgeships. The White House submitted 25 nominations (78%)– a significantly better looking nomination rate than the 53% for the first two months of the new Congress. To be sure, the White House was far slower in securing nominees for the District Courts, sending up 78 nominees for the 125 trial court vacancies (62%) that were open at some point during the last Congress. But that pace far exceeded the White House’s current rate (48%) of finding suitable nominees.
Regardless of the nomination rate or the baseline for calculating it, why does the White House move so slowly? John notes vetting, attention, and coordination barriers. I would encourage us to think as well about the political and partisan barriers that the president faces in trying to identify judicial candidates who are likely to be confirmed by today’s Senate. As Wheeler and I note, at least for the trial court appointments, the White House was far more successful in submitting nominations for judgeships located in states represented by at least one (if not two) Democratic senators. Sixty-six percent of those vacancies secured a nominee; only 42% of seats in states represented by two Republicans received a nominee. We suggest that the lower nomination rate for GOP states reflected the administration’s difficulties in gaining Republican home state senators’ approval for nominees. That is certainly the pattern that Forrest and I show “here”:http://www.ingentaconnect.com/content/uoi/lsq/2004/00000029/00000001/art00002 (gated) more generally over the postwar period: Vacancies in states with two opposition party senators take disproportionately longer to fill– not surprising given the array of formal rules and informal practices that increase the leverage of single senators in blocking nominees they oppose.
Certainly the White House could do more to push the Senate to fill these vacancies– many of them deemed “emergencies” by the federal judiciary on account of overwhelming caseloads. Jon suggests the Senate majority should also be prepared to “go nuclear” if GOP foot-dragging gets worse. I’m more skeptical than Jon that the nuclear threat would tame the minority (as explored “here”:ajmadonn.myweb.uga.edu/Going%20Nuclear.pdf). But given Senate leaders’ recent promises to play nice on the Senate floor, we can save that debate for another day.