THE STATE OF THE JUDICIARY Judicial Selection During the Remainder of President Obama s First Term

Transcription

1 THE STATE OF THE JUDICIARY Judicial Selection During the Remainder of President May 7 th, 2012 A report by Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC

2 About Alliance for Justice Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. AFJ works to ensure that the federal judiciary advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. It is the leading expert on the legal framework for nonprofit advocacy efforts, providing definitive information, resources, and technical assistance that encourages organizations and their funding partners to fully exercise their right to be active participants in the democratic process. For more information on this report, contact AFJ s Washington headquarters. Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC All material within this report is protected by copyright law and may not be reproduced without the express written consent of Alliance for Justice Alliance for Justice

3 Contents I. Executive Summary... 4 II. Continuing Republican Obstructionism... 7 III. President Obama s Judicial Nominees... 4 A. Nominees Demographic and Professional Backgrounds... 9 Racial and Gender Diversity... 9 Age...10 Professional Diversity...12 B. Nominations...13 IV. Obama s Record after Three Years in Office Confirmations...15 Vacancies...17 Judicial Emergencies...18 Composition of the Courts...18 Notes...20

4 This report contains statistics that are accurate as of May 7 th, 2012, after the current deal to confirm nominees expires. The data assume that the remaining three nominees who are part of the deal Jacqueline Nguyen, Kristine Baker, and John Lee will be confirmed on the 7 th as scheduled. For current statistics, please visit I. Executive Summary As President Obama nears the home stretch of his first term, the cumulative effects of Republican senators ceaseless obstruction of judicial nominees and election-year politics will likely mean that President Obama will finish his first term with more vacancies and judicial emergencies than when he took office and with far fewer confirmations than his two predecessors had at the end of their first terms. This will be the case even if the Senate confirms several dozen nominees over the remainder of the Congress. The astonishing degree of long-term obstruction is exemplified by the fact that on May, 7, 2012, the Senate finally finished dealing with the nominees left pending on the Senate floor at the end of last year. It has yet to confirm a single nominee submitted by the president in The Republicans goal has been clear from the start to keep as many seats as possible vacant for a future Republican president to fill with ultraconservative judges. Their tactics have meant that with one in ten judgeships unfilled, millions of businesses and everyday Americans have had their cases delayed and their lives disrupted. Before Congress recesses for the election in October, it is essential that the Senate mitigate the harm that endless obstruction has done to the federal judiciary and give a final yes-or-no vote to every nominee submitted by the president in The cumulative results of over three years of Republican obstructionism are startling. This report documents that: During President Obama s first term, current vacancies have risen by 43%. This trend stands in stark contrast to President Clinton and President Bush s first three years, when vacancies declined by 57% and 60%, respectively. [See infra, page 17] Nearly one out of ten Federal judgeships remains vacant. Judicial vacancies are nearly double what they were at this point in President George W. Bush s first term. [See infra, page 17] The number of seats considered to be judicial emergencies has risen by 70%, from 20 at the beginning of President Obama s term to 34. [See infra, page 17]. 4

5 The Senate has confirmed far fewer nominees at this point in President Obama s first term than it had for his two predecessors in office. The percentage of confirmed district court nominees is at historically low levels. [See infra, page 15] Republicans even blocked large numbers of nominees to seats that the Administrative Office of the U.S. Courts had declared to be judicial emergencies. Thirty-four of the existing vacancies are judicial emergencies. [See infra, page 17] Republican appointees still dominate the federal judiciary. Since the end of the Bush Administration, the percentage of Republican-appointed circuit court judges only dropped from 61.3% to 52.7%, and the percentage of Republican-appointed district court judges only dropped from 59.4% to 54.0%. [See infra, page 18] Republicans forced filibusters on the most uncontroversial of nominees. Amazingly, they even blocked the first Cuban-American jurist on the 11 th Circuit Court of Appeals, which has jurisdiction over Florida, Georgia, and Alabama. [See infra, page 7] The So-Called Thurmond Rule Republican senators have suggested that, given that this is a presidential election year, the Senate should stop confirming judicial nominees at some point this summer. This practice has colloquially come to be known as the Thurmond Rule. The Thurmond Rule is not a formal Senate procedure or a bipartisan agreement, nor has its meaning or parameters been clearly articulated. In fact, over the last 30 years confirmations of district and circuit court nominees have continued well into presidential election years under both Democratic and Republican presidents. Most recently, in 2008 the Senate confirmed 10 of President George W. Bush s nominees on September 26, all by unanimous consent. For more information on the Thurmond Rule, please see the Alliance s recent report. Republican senators often prevented or significantly delayed eminently qualified nominees from even having their Senate Judiciary Committee hearings. For instance, Senator Heller (R-NV) has brazenly blocked Sen. Reid s (D-NV) nominee to the Nevada district court, Elisa Cadish. [See infra, page 7] Despite Republicans obstructionist onslaught, it is essential that our elected officials do everything that they can to fully staff our courts. Nearly half of all Americans 150 million live in districts or circuits that have a vacancy that would be filled today if Republican obstruction of judicial nominees would end. The president, Democratic and thoughtful Republican senators, and the American people should forcefully push back against Republican political tactics and demand votes on every 5

6 pending nominee. As a first step, the Senate should immediately confirm the 19 nominees pending on the Senate floor as of May 7th, virtually all of whom were reported out of committee with bipartisan support. It is simply unacceptable that qualified, consensus nominees who in past years would have been confirmed in days or weeks now languish on the Senate calendar for months because Republicans refuse to consent to debate or vote on nominations. The Senate should not be required to overcome Republican filibusters in order to secure votes on these nominations. Indeed, in 2008, the Senate confirmed 10 such nominees on September 26, all by unanimous consent. The American people deserve a federal court system that is fully staffed and able to fulfill the promise of justice for all. The country cannot afford to wait any longer for the confirmation process to return to a rational and fair basis. The upcoming elections must not be used as an excuse to perpetuate obstructive behavior. Every nominee the president puts forward in 2012 deserves a yes-orno vote in Time may be short, but the need for action has never been greater. With confirmations lagging at historically low levels, every opportunity must be taken to nominate and confirm new judges at a pace commensurate with the scope of the crisis we face. The upcoming elections must not be used as an excuse to perpetuate obstructive behavior. Every nominee the president puts forward in 2012 deserves a yes-or-no vote in Time may be short, but the need for action has never been greater. 6

7 II. Continuing Republican Obstruction Almost six months into 2012, the Senate has confirmed zero judges nominated by the president in In fact, the Senate is still cleaning up the backlog from last year, when, just prior to the Senate s winter recess, Republican leaders did not allow any confirmation votes on 16 nominees who were reported out of committee unanimously, 8 of whom would fill judicial emergencies. The last of these nominees, Jacqueline Nguyen who will fill an emergency vacancy on the 9 th Circuit and who will also be the only active Asian American jurist in a circuit in which 40% of the nation s Asian Americans live will be confirmed on May 7 th, 229 days from her nomination. Additionally, Republicans attempted to filibuster two unquestionably qualified, bipartisan nominees: 11 th Circuit nominee Adalberto Jordán, and Southern District of New York nominee Jesse Furman. Judge Jordán the first Cuban American nominee to the 11 th Circuit, which has jurisdiction over Florida, Georgia, and Alabama won his cloture vote 89-5 and was confirmed Judge Furman who clerked for George W. Bush s Attorney General, Michael Mukasey, when Mukasey served as a judge and then served as a counselor to Mukasey while Mukasey was Attorney General was confirmed after Republicans relented and allowed the cloture motion on his nomination to be withdrawn. Republicans attempted filibusters and continuing delays of other nominees helped persuade Senate Majority Leader Harry Reid (D-NV) to file cloture and force votes on 17 long-delayed nominees. Since almost all of these nominees were unopposed, and many had strong support from their home-state Republican senators, Republican leaders were forced to face unpleasant votes or cut a deal with Sen. Reid. Ultimately, the cloture votes were waived, and Republicans agreed to confirm 14 nominees, including Judge Nguyen, by May 7. Democrats did not promise to refrain from filing cloture on other nominees after May 7, and if Republicans block nominees going forward that may be necessary. In addition to blocking confirmation votes, Republicans have delayed the process in the Senate Judiciary Committee as well. Their primary approach was to refrain from returning nominees blue slips in a timely manner. For instance, though President Obama nominated Robert Bacharach, a completely uncontroversial federal magistrate judge, to the 10 th Circuit on January 23 rd, Senator Coburn (R-OK) waited almost 5 months, until May 1, even though Senator Inhofe (R-OK), one of the chamber s most conservative members, returned his blue slip in March. In another example, Sen. Heller (R-NV) still refuses to return the blue slip for Elissa Cadish, nominee to the District of Nevada, because Judge Cadish wrote in a judicial 7 Almost six months into 2012, the Senate has confirmed zero judges who the president nominated in In fact, the Senate is still cleaning up the mess from last year.

8 questionnaire several years ago that there was no individual right to bear arms, even though at the time she answered the questionnaire the Supreme Court had not yet issued its Heller and McDonald opinions declaring that there was in fact such a right. Sen. Heller has blocked Ms. Cadish despite the fact that she wrote him a letter explaining that that was the law at the time, that the law has subsequently changed, and that she would of course follow the law. Incredibly, he has blocked her nomination despite bipartisan calls from state leaders and direct pleas from the Senate s most powerful member, his fellow Senator Nevada Senator, Harry Reid, to give her a hearing. 8

9 III. President Obama s Judicial Nominees Three overarching factors still define President Obama s nominations record: 1) his nominees historic racial and gender diversity, 2) the nominees moderation and mainstream professional backgrounds, and 3) his slow start in making district court nominations. A. Nominees Demographic and Professional Backgrounds Racial and Gender Diversity President Obama s nominees have been the most diverse in terms of race and gender in American history. Forty-six percent of his appointees have been women and more than 36% have been people of color, a far higher percentage than any of his predecessors. In comparison, President Clinton had the next best record, and only 29% of his appointees were women and only 24% of his appointees were people of color. President Obama s historic leads may erode slightly over the coming months, as more of his recent nominees have been white and/or men. The following chart provides comparative data for the previous five presidencies. 9

10 Article III (Lifetime) Judges by Gender and Ethnicity 1 President (Term) Total Male Female White African American Hispanic Asian American Native American Obama confirmed 145* 78 (53.8%) 67 (46.2%) 92 (63.4%) 25 (17.2%) 18* (12.4%) 11* (7.5%) 0 Obama pending (71.0%) 9 (29.0%) 21 (67.7%) 6 (19.3%) 3 (9.6%) 1 (3.2%) 0 Obama Returned/could be renominated Obama withdrawn/not renominated Bush II ( ) confirmed Clinton ( ) confirmed Bush I ( ) confirmed Reagan ( ) confirmed Carter ( ) confirmed (78.2%) 267 (70.6%) 157 (81.3%) 351 (91.6%) 221 (84.3%) 71 (21.8%) 111 (29.4%) 36 (18.7%) 32 (8.8%) 41 (15.7%) 269 (82.2%) 285 (75.3%) 172 (89.1%) 360 (93.9%) 205 (78.2%) 24 (7.3%) 62 (16.4%) 13 (6.7%) 7 (1.8%) 37 (14.1%) 30 (9.1%) 25 (6.6%) 8 (4.1%) 14 (3.6%) 16 (6.1%) 4 (1.2%) 5 (1.3%) 0 1 (0.2%) (0.5%) 3 (1.1%) 0 1 (0.3%) * Judge Cathy Bissoon (Western District of Pennsylvania) identifies as both Hispanic and Asian American. She is included in both ethnicity categories but only once, obviously, in the total number of confirmed judges. Age The average age of President Obama s appointees 51.4 years old is considerably higher than the average age of any of the last three Republican presidents confirmed judges. The age discrepancy is particularly glaring for circuit court appointees, who have been, on average, 4-5 years older than Republican presidents appointees. Republican presidents have shown no hesitancy in nominating people under 50 to circuit court seats, and in fact have placed a premium on selecting young nominees. 2 As for district court seats, President Reagan nominated over 30 people under 40 years old to the district court bench, while President Obama has nominated only 5. Since young district court appointees are often prime candidates for subsequent elevation to 10

11 the circuit courts, both President Obama and future Democratic presidents may have relatively few of these potential nominees to consider going forward. The following two charts show the average age of confirmed judges over the last five presidencies and the age distribution of President Obama s nominees. The second chart shows that Obama s nominees skew marginally toward the upper 50s, raising his nominees average age above his predecessors nominees average age. Looking forward, the president will need to nominate many more younger nominees if he wants to have a more lasting judicial selection legacy. 11

12 Professional Diversity President Obama s nominees have largely served in private practice, as judges, or as prosecutors prior to their nominations, while fewer have been public defenders, legalaid attorneys, or non-governmental public interest attorneys. This is particularly true for Obama s circuit court nominees, who skew even more heavily to prosecutors and judges. Only one of the president s nominees Ed Chen, now Judge Chen of the Northern District of California served as a non-governmental public interest attorney prior to joining the bench. Moreover, the number of prosecutors, 83, far outweighs the number of public defenders, 25. The president has also nominated only 11 former academics. 12

13 B. Nominations As illustrated in the following chart, President Obama has made fewer nominations at this point in his presidency than his two predecessors in office, even though all three presidents faced a similar number of vacancies. The two main reasons for this are that President Obama made relatively few nominations in his first year in office (when there was also a Supreme Court vacancy), and that he has been particularly slow in making district court nominations. As illustrated below, President Obama made 25 fewer district court nominations than President Bush and 45 fewer nominations than President Clinton at a comparable point in their presidencies, with much of the gap coming in his first year. The gap has closed slightly so far this year. In comparison, the president made 2 more circuit court nominations than President Clinton and 9 fewer than President Bush in the same period. 13

14 Largely as a result of the slow nomination rate, there are far more vacancies without nominees at this point in President Obama s tenure than there were at comparable points in the last two presidencies. One reason why President Obama has not made nominations for many current vacancies is that 63% of those vacancies are from states represented by at least one Republican Senator, which makes the process much slower, absent cooperation. 14

15 IV. Obama s Record after Almost Three and a Half Years in Office Confirmations The Senate has confirmed far fewer nominees at this point in President Obama s first term than it had confirmed for his two predecessors in office. Specifically, he trails President Bush by 29 confirmations and President Clinton by 38 confirmations. Given that President Bush and President Clinton had approximately 200 confirmed nominees at the end of their first terms, approximately 60 nominees would need to be confirmed this year in order for President Obama to match his predecessors. In addition to confirming fewer of President Obama s nominees than his predecessors, the Senate has also confirmed President Obama s nominees at a lower rate. This is particularly notable for district court nominees, where Obama badly trails both Presidents Bush and Clinton. 15

16 The district court disparity looks particularly striking if you consider that President Bush had 96.5% of his district court nominees confirmed at the end of his first term. Obama has a long way to go to reach that number. 16

17 Vacancies During President Obama s tenure, current vacancies have risen by 43% from 55 to 79. This trend stands in stark contrast to President Clinton and President Bush s first three years, when vacancies declined by 57% and 60%, respectively. If the current confirmation trends continue, President Obama will become the first president since Reagan, and possibly much earlier, 3 to finish his first term with more vacancies than he inherited, excluding newly created seats. Judicial Emergencies The situation for seats considered to be judicial emergencies by the Administrative Office of the US Courts also continues to be dire. There were still 34 such seats as of May 7 th, up from 20 at the beginning of the Obama administration. 17

18 Composition of the Courts Republican appointees still dominate the federal judiciary. The percentage of Republican versus Democratic appointees has barely changed so far this year. Courts of appeals have moved from 38.7% to 47.3% Democratic, while district courts have moved from 41.4% to 45.7% Democratic. There are currently 430 Republicanappointed federal judges and 366 Democratic-appointed judges. Nominating-Party Composition of the Courts: the Past Three Presidencies Party As of 5/7/2012 Democrat- Appointed Republican- Appointed End of Bush Administration Democrat- Appointed Republican- Appointed Supreme Court Courts of Appeals Percentage Courts of Appeals District Courts Percentage of District Courts Total Judges Percentage of Total Judges % % % % % % % % % % % % In terms of power on the circuit courts, during President Obama s tenure the circuit courts have shifted from 10 circuits controlled by Republicans, 1 by Democrats and 2 evenly divided, to 7 circuits controlled by Republicans and 6 controlled by Democrats. Specifically, the Second and Third Circuits have switched from being evenly divided to being majority Democrat-appointed. The Fourth. Eleventh, and Federal Circuits have switched from being majority Republican-appointed to being majority Democrat-appointed. The First, Fifth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuit Courts of Appeals have retained their Republican-appointed majorities, and the Ninth Circuit has retained its Democrat-appointed majority. The biggest missed opportunity to reshape the balance of power on a circuit court has been on the D.C. Circuit, where Republicans unfairly blocked Caitlin Halligan s nomination, and where three seats are currently vacant. 18

19 Circuit Courts of Appeals Breakdown By Appointing President s Party Circuit Total Seats at end of Bush II Republican- Appointed Democrat- Appointed Existing Vacancies Partisan Control at End of Bush II Total Seats At Beginning of Obama New Vacancies During Obama Republican- Appointed Democrat- Appointed Vacancies Partisan Control NOW First Republican Republican Second Even Democratic Third Even Democratic Fourth Republican Democratic Fifth Republican Republican Sixth Republican Republican Seventh Republican Republican Eighth Republican Republican Ninth Democratic Democratic Tenth Republican Republican Eleventh Republican Democratic Federal Republican Democratic D.C Republican Republican Total Republican 1 Democratic 2 Evenly Split Republican 6 Democratic 0 Evenly Split 19

20 Notes 1 Data for previous presidents gathered from the Federal Judicial Center s Judicial Selection Database. If a judge was confirmed to multiple seats during a presidency, we count each confirmation separately. Additionally, the Federal Judicial Center Database does not list Arab American as a search category. We have identified 10 Arab American judges who the Federal Judicial Center lists as White: 1 Obama nominee (Shadid), 2 Bush II nominees (Zainey, Zouhary), 3 Clinton nominees (Barkett, Steeh, Sargus), 1 Bush I nominee (Haik), 2 Reagan nominees (Doumar, Dowd), and 1 Carter nominee (Kazen). 2 Mark Greenbaum, To leave a liberal legacy in the courts, Obama must imitate the GOP, CHRISTIAN SCIENCE MONITOR, May 26, 2011 (noting that only 7 of President Obama s 30 circuit court nominees were under 50 at the time of nomination; by comparison, 21 of 43 of President Bush s circuit court nominees at a similar point were under 50), available at 3 Data is only available back to Pub. L. No (2008) transferred one judgeship from the DC Circuit to the Ninth Circuit. The loss of the judgeship in the DC Circuit was effective the date the bill became law on January 7, 2008, but the effective date of the additional judgeship for the Ninth Circuit was January 21, rev. 5/4/12 20