Pam Spaulding mentioned that the Ninth Circuit Court of Appeals has denied a re-hearing of Perry v. Schwarzengger, meaning that the marriage equality case is headed to the Supreme Court (albeit in less sturdy condition to lead to marriage equality nationwide, as bmaz points out). It’s worth pointing out that only 4 of the 27 current members of the Ninth Circuit favored a re-hearing, and that one of them was JayBybee, author of the infamous torture memo. Despite the conduct completely unbecoming a member of the federal bench, Bybee still sits on the Ninth Circuit and hears cases, and if he so chooses, he’ll do it for the rest of his life.
This underlines the importance of judicial nominations in our political system, and the stunning lack of emphasis that the current Administration has put on it. In a new report liberated by Steven Aftergood, the Congressional Research Service took a look at judicial vacancies, finding that, at the beginning of 2012, the federal judiciary had more open seats than they did when President Obama first came into office.
The growing number of vacancies in the federal judiciary and the factors that increasingly impede the successful nomination and confirmation of new judges were examined by CRS.
“District court vacancies have grown in number over the course of the Obama presidency, from 42 judgeships vacant when President Obama took office to 59 at present,” the CRS report said. During that period 150 district court judges were nominated but only 117 of them were confirmed.
“During the Obama presidency thus far,… fewer Obama district court nominees have been confirmed by the Senate than were confirmed during the first terms of the four preceding Presidents,” CRS found.
There’s a two-fold problem here. One, we have increasing obstructionism from the Republican Senate, who know the value of a lifetime federal judicial appointment and have sought to block as many as are feasible. This obstruction has actually begun to loosen a bit in 2012, thanks in part to a deal between the parties. But there’s another problem identified in the report, as Adam Serwer points out. Using the above chart, Serwer writes:
The chart makes it clear that, as my colleague Nick Baumann reported last year, this isn’t simply a matter of Republican obstruction, although that is an important factor. Even if that ceased tomorrow, the Obama administration has offered so few judicial nominations that most of the vacancies still wouldn’t be filled. Recess appointments aren’t a solution, because without Senate approval lifetime judicial appointments become short term ones. Should Obama lose the 2012 election, the number of vacancies would set up a President Mitt Romney with the opportunity to pack the federal bench with Republican nominees.
You would think that, just as a legacy-building matter, the President and his staff would be more attentive to this. Because of the loosening of the obstructionism in recent months, you cannot credibly make the case that any nominees would just be filibustered anyway. The Senate doesn’t exactly have much to do between now and the end of the year. Every day they fail to confirm a nominee is a missed opportunity. But the White House must provide the raw materials. (To be fair, they must also wrestle with home-state Senators, who traditionally have say on appointments, and that could be mucking up the works here as well.)
Otherwise, we get into a situation where conservatives can bias the law, shut the courthouse door to those who disagree with them politically, and hamstring any hopes of liberal governance for generations.