THE STATE OF THE JUDICIARY Judicial Selection During the 113 th Congress October 24, 2013 A report by Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC 20036 www.afj.org
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 20036 202.822.6070 All material within this report is protected by copyright law and may not be reproduced without the express written consent of Alliance for Justice. 2013 Alliance for Justice
Contents I. Executive Summary... 4 II. President Obama s Judicial Nominees... 5 A. Nominees Demographic and Professional Backgrounds... 6 Racial and Gender Diversity... 6 Age... 7 Professional Diversity... 8 B. Pre-Nomination Obstruction... 9 C. Nominations...10 III. Obama s Record after More Than Four Years in Office...12 A. Confirmations...12 B. Vacancies...14 C. Judicial Emergencies...15 D. Composition of the Courts...15 Appendix I: Nominees Pending on the Senate Floor as of 10/22/2013...16 Appendix II: Vacancies Without Nominees Maps as of 10/22/2013...17 Notes...20
I. Executive Summary Throughout President Obama s nearly five years in office, the federal courts have experienced an unprecedented vacancy crisis. Congress returned from the August 2013 recess to a federal judiciary with 109 current and future vacancies, 45 pending nominees, and more than 60 vacancies without nominees, almost exclusively concentrated in states with at least one Republican senator. While several major Senate showdowns in the past year have set the stage for progress in filling judicial vacancies, and more than half of the current vacancies have nominees pending either on the Senate floor or in the Senate Judiciary Committee, there are more unfilled vacancies as of this report than there were as of AFJ s last State of the Judiciary Report in March 2013. Although the numbers appear bleak, the situation as of October 2013 is in some ways less dire than at the start of President Obama s second term. Nine nominees await votes on the Senate floor, and there is a backlog of 42 nominees awaiting Judiciary Committee processing. President Obama has put forth a full slate of nominees to the D.C. Circuit Court of Appeals, each of whom was given the highest possible rating by the American Bar Association. Nominees are pending for 19 of the 37 vacancies classified as judicial emergencies. Senate Republicans, including Judiciary Committee Ranking Member Chuck Grassley (R-IA), have made the misleading claim that Republicans have only blocked two of President Obama s nominees: Caitlin Halligan and Goodwin Liu. This cherry-picked statistic masks the full extent of Republican obstructionism of judicial nominees and confirmations. In total, 15 nominees have been forced to withdraw from consideration after Republicans blocked a confirmation vote, sometimes after publicly agreeing to support a nominee. A much more pervasive and surreptitious form of obstruction has occurred through the threat of withholding blue slips (discussed in more detail below) for qualified nominees. No nominee who lacks the support of both home-state senators has been successfully confirmed, and it has been White House practice to avoid nominating any individual who will not be supported by their senators. This has allowed Republican senators to keep judicial vacancies unfilled for long periods of time in some cases, over 1,000 days without any public accountability. Brian Davis, Rosemary Marquez, Jennifer May-Parker, Jill Pryor, and William Thomas are all pending nominees whose confirmations have been delayed for months or even years due to Republican senators withholding blue slips. Each of these nominees has been rated qualified or well-qualified to serve as a federal judge by the American Bar Association. As President Obama has nominated individuals to vacancies, a pattern has become increasingly clear: vacancies without nominees are more prevalent, and more persistent, in states with at least one Republican senator. As of our last report, 25% of current vacancies without nominees were in states with two Democratic senators. That number has dropped to 7% as of October 22, 2013. The Republican senators who refuse to cooperate with President Obama to fill the vacancies in their states 4
must be held to task for the obstructionism that ultimately is most harmful to their own constituents. In the short-term, the Senate needs to confirm all of the 9 nominees currently pending on the Senate floor, especially President Obama s nominees to the D.C. Circuit Court of Appeals. 1 With the exception of the D.C. Circuit nominees, all of the nominees currently pending on the Senate floor were voted out of the Judiciary Committee without opposition. Furthermore, four nominees Brian Davis, Rosemary Marquez, Jill Pryor, and William Thomas still await full consideration by the Committee, despite being nominated during President Obama s first term and renominated immediately at the start of the 113 th Congress. These nominees remain trapped in the Committee because Senate Republicans in Florida, Arizona, and Georgia have refused to return or significantly delayed returning blue slips, without voicing any legitimate justification for withholding support. In brief, this report documents that: During President Obama s time in office, current vacancies have risen by 65%. This trend stands in stark contrast to the comparable point in President Clinton s and President Bush s second terms, when vacancies had declined by 35% and 39%, respectively. [See infra, page 14] More than 10% of all Federal judgeships are vacant. Judicial vacancies are more than double what they were at this point in President George W. Bush s second term. [See infra, page 14] Overall, states with at least one Republican Senator account for more than 90% of all current vacancies without nominees, and states with two Republican Senators account for 51% of all current vacancies without nominees. Texas and Pennsylvania together account for 50% of all current circuit court vacancies without nominees, over 39% of all current district court vacancies without nominees, and over 41% of total current vacancies without nominees. The number of seats considered to be judicial emergencies has risen by 85%, from 20 at the beginning of President Obama s term to 37. [See infra, page 14] President Obama s nominations have brought near parity between Democratic-appointed judges and Republican-appointed judges. Since the end of the Bush Administration, the percentage of Republican-appointed circuit court judges dropped from 61.3% to 49.1%, and the percentage of Republican-appointed district court judges dropped from 58.6% to 50.3%. [See infra, page 15] 5
The president has appointed the highest percentage of women (42%) and minorities (38%) in history. [See infra, page 6] There are more pending nominees (51) than current vacancies without nominees (41). President Obama, now almost a year into his second term, has sent well-qualified nominees to the Senate for consideration, almost none of whom have faced substantive opposition from Republicans in the Senate. It is time for Republicans to allow these nominees to move forward, clear the backlog of pending nominees, and work with the President to fill the remaining vacancies without nominees, which are so heavily concentrated in states they represent. In the absence of increased cooperation, it may be time for the White House, the Senate Judiciary Committee, and the full Senate to reconsider the various senatorial courtesies throughout the nomination and confirmation process that have been too often abused as opportunities for obstruction. A functioning, fully-staffed judiciary is a bedrock of American democracy, and a minority in the Senate should not be able to keep the federal bench from operating at full capacity. II. President Obama s Judicial Nominees After more than four and a half years in office, three overarching trends define President Obama s record: 1) his nominees historic racial and gender diversity, 2) the nominees moderation and traditional professional backgrounds, and 3) a significant uptick in making judicial nominations after a slow start at the beginning of his first term. A. Nominees Demographic and Professional Backgrounds Racial, Gender, Sexual Orientation, and Disability Diversity President Obama s nominees have been the most diverse in terms of race and gender in American history. Forty-two percent of his confirmed appointees have been women and 38% have been people of color, a far higher percentage than any of his predecessors. In comparison, President Clinton had the next best record; 29% of his appointees were women and 24% of his appointees were people of color. Additionally, President Obama has the best record of any president in appointing openly gay nominees to the bench. Seven openly gay nominees have been confirmed so far, including Todd Hughes, the first openly gay circuit court judge, and two more are pending. Prior to the Obama presidency, only one openly gay nominee had been confirmed to a lifetime judgeship. The following chart provides comparative data for the previous five presidencies. 6
Article III (Lifetime) Judges by Gender and Ethnicity 2 President (Term) Obama confirmed Obama pending Obama withdrawn/ not renominated Obama total Bush II (2001-2008) confirmed Clinton (1993-2000) confirmed Bush I (1989-1992) confirmed Reagan (1981-1988) confirmed Carter (1977-1980) confirmed Total Male Female White African American 209* 51* 122 (58.4%) 28 (55%) 87 (41.6%) 23 (45.1%) 132 (63.2%) 34 (66.7%) 37 (17.7%) 10 (19.6%) Hispanic 27 (12.9%) 2 (3.9%) Asian Pacific American 15 (7.2%) 4 (7.8%) Native American 0 1 (2%) Native Hawaiian or Other Pacific Islander 1 (0.5%) Openly GLBT People with Disabilities 7 1 0 2 0 13 8 5 7 4 0 1 1 0 1 0 273* 158 115 173 51 29 20 2 1 10 1 327 378 193 383 262 256 (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 0 0 2 1 (0.2%) 0 1 3 0 0 0 0 1 2 (0.5%) 3 (1.1%) 0 0 0 1 1 (0.3%) 0 0 1 * Several nominees and confirmed judges identify in multiple categories. For statistical purposes, they are counted in each of these columns.. Age The average age of President Obama s appointees at nomination 51.3 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 2-5 years older than Republican presidents appointees. Because federal judicial appointments are for life, Republican presidents have repeatedly nominated people under 50 to circuit court seats, and in fact have placed a premium on selecting young nominees. 3 As for district court seats, President Reagan nominated more than 30 people under 40 years old to the district court bench, while President Obama has nominated only 6. Since young district court appointees are often prime candidates for subsequent elevation to the circuit courts, both President Obama and future Democratic presidents may have relatively few of these potential nominees to consider going forward. 7
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. 4 The second chart shows that Obama s nominees skew marginally toward the upper 50s, which accounts for why his nominees average age is higher than his predecessors nominees average age. Since our March report on the State of the Judiciary, the average age of President Obama s judicial nominees has continued to tick down slightly, and now rests at 51. In particular, several recent circuit court nominees are in their early 40s, and all three D.C. Circuit nominees are younger than the average age of President Obama s circuit court picks. However, the average age of President Obama s judicial appointees is still far older than any of his modern predecessors by a significant margin. 8
Professional Diversity President Obama s nominees have largely served in private practice, as judges, or as prosecutors prior to their nominations, while significantly fewer have been public defenders, legal-aid 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 nine of the president s nominees served as non-governmental public interest attorneys prior to their nomination. Moreover, the number of prosecutors, 103, far outweighs the number of public defenders, 36. The president has also nominated only 12 former academics. A professionally diverse judiciary better reflects the range of legal and societal experiences that judges bring to the bench. A judiciary heavily slanted toward former corporate attorneys and prosecutors lacks the perspective of lawyers who have represented clients in criminal defense, consumer and environmental protection, personal injury, and public interest fields. Facing 58 total vacancies without nominees, there is a unique opportunity for President Obama to place increased emphasis on professional diversity in his second term, both at the district court and at the circuit court levels. 9
B. Pre-Nomination Obstruction Since our last report, the Republican use of behind-the-scenes tactics to obstruct the judicial nominations process has continued unabated. In fact, due to a steady influx of nominations from states with two Democratic senators, the Republican delays have come into even sharper focus: 90% of federal judicial vacancies without nominees are in states with at least one Republican senator. While Republicans have publicly criticized the White House for the lack of nominees to the outstanding vacancies, these same senators have done everything possible to prevent President Obama from going forward with qualified nominees. Furthermore, home-state senators have traditionally played a primary role in district court selection; nominees are recommended to the White House by home-state senators before undergoing a White House vetting process. 5 Republican Senators in states with vacancies continue to withhold so-called blue slips (which certify the acceptability of a candidate to a senator) for qualified nominees. While the President can make a nomination without the home-state senators support, it remains the policy of Senate Judiciary Committee Chairman Patrick Leahy (D-VT) to only hold hearings on nominees who have received favorable blue slips from both home-state Senators. As a result, the President has been reluctant to make a nomination without feeling confident that both home-state Senators will return their blue slips on that nominee. Texas is a particularly egregious example of the delaying tactics of conservatives in the Senate. After Senator Sheldon Whitehouse (D-RI) took Texas Senators John Cornyn and Ted Cruz to task in May 2013 for failing to move forward on the numerous vacancies in their state, the senators set up a commission to vet potential nominees for six of the then-seven Texas district court vacancies. 6 Since that time, another vacancy has arisen, leaving Texas with 8 district court vacancies, two of which lack any current vetting process. More than four months later, the Senators commission has failed to even hold interviews for potential candidates, long after the commission was finally formed and the application deadline was closed. Moreover, the process in 10
place, which itself took far too long to assemble, is not even tasked with providing recommendations for all of the current district court vacancies in the state. Florida is another example of the Republicans intransigence. After publicly pledging to support all nominees recommended to the White House by the Florida nominations commission he and Democratic Senator Bill Nelson established, Senator Marco Rubio has obstructed the confirmations of Brian Davis and William Thomas, who are both African American state court judges. 7 Senator Rubio s only stated substantive reason for rescinding his support for Will Thomas that he was insufficiently harsh in criminal sentencing was publicly refuted by state prosecutors. Both nominees would fill judicial emergencies, and Florida faces four additional current and future vacancies. If confirmed, Judge Thomas would be the first openly gay male African American federal court judge. In July, Republicans were forced to back down from their public obstruction of a slate of executive branch nominees in the face of public anger over Senate gridlock. The Republican obstruction of our judicial system is no less real just because a large portion of the delay takes place in the shadows. The American people deserve a fully staffed judiciary that is not held hostage to political brinksmanship. C. Nominations During his first term in office, President Obama significantly trailed his two most recent predecessors in terms of the number of nominations he made. This has changed in his second term, and now President Obama s total number of nominations far exceeds President Bush and is approaching President Clinton. As illustrated in the preceding chart, President Obama made relatively few district court nominations in his first year in office (when there also was a Supreme Court vacancy), and he continued to trail his predecessors in his second and third years even after ramping up his district court nominations. President Obama has outpaced both of his immediate predecessors in second term district court nominations, and now has made more district court nominations than President Bush while slightly closing 11
the gap with President Clinton. As for circuit court nominations, the President maintained a steady pace through his first three years in office, before falling off a bit last year (as is often the case in election years). In his second term, President Obama has made strides toward nominating judges for each circuit court vacancy; more than half of current circuit court vacancies have pending nominees. As with district court nominations, President Obama has made more second-term circuit court nominations than either President Bush or President Clinton. He has also made more total circuit court nominations than both of his predecessors through this point in their presidencies. President Obama s increased nominations pace has closed the gap of current vacancies without nominees to 41. While the status quo remains dire, the increased pace of judicial nominations puts the onus on the Senate particularly Senate Republicans to clear the extensive pending backlog. The Senate must perform its constitutional duty to swiftly confirm qualified nominees to the federal judiciary. III. Obama s Record after More Than Four Years in Office A. Confirmations While President Obama has picked up the pace of nominations, the Senate has lagged behind in confirming these nominees. The Senate has confirmed approximately a dozen fewer nominees at this point in the Obama Presidency than it had confirmed during a comparable period during the two previous administrations. 12
Although he had made by far the fewest nominations by this point in his presidency, President Bush s total confirmations at this time exceeded President Obama s and nearly equaled President Clinton s. This confirmation discrepancy is largely due to the comparatively harsh treatment of President Obama s district court nominees. While the Senate confirmed 93% of President Bush s district court nominees at this point in his presidency, it has confirmed only 77% of President Obama s district court nominees. This new and dangerous escalation in the judicial confirmation battles has largely stemmed from Republican senators willingness to extend tactics and scrutiny previously reserved for circuit court nominees to district court nominees. Though no district court nominee has ever been successfully filibustered, Senator Minority Leader Mitch McConnell (R-KY) has tried to end that tradition, repeatedly blocking votes on nominees who, in the past, would have been confirmed without debate. McConnell s obstructionism is so bad that Senate Majority Leader Harry Reid (D- NV) has been forced to file cloture to end debate on a record 20 of President Obama s district court nominees. For comparison, Presidents Bush and Clinton each had cloture filed on one of their nominees. 8 A bipartisan group of Senators recognized this problem, and made changes to the Senate s rules at the beginning of the current Congress that will allow for swifter consideration of district court nominees. Post-cloture time for district nominees was 13
reduced from 30 hours to 2 hours, meaning that in theory the Senate can now confirm 15 nominees in the time that it previously could confirm one. However, the pace of confirmations has slowed since earlier in the year; seven nominees have been confirmed since September 9, when Congress returned from recess, and despite several non-controversial nominees pending on the Senate floor, only three nominees were confirmed between June 17 and the August recess. B. Vacancies During President Obama s tenure, current vacancies have risen by 65% from 55 to 91. This trend stands in stark contrast to a comparable period in President Clinton s and President Bush s tenures, when vacancies declined by 35% and 39%, respectively. Ninety-one of 874 Article III judgeships are currently vacant. C. Judicial Emergencies The number of seats considered judicial emergencies by the Administrative Office of the U.S. Courts meaning those courts simply do not have enough judges to handle their caseloads also continues to be untenably high. There were still 37 such seats as of October 22, up from 20 at the beginning of the Obama administration. Only one of the 18 emergency vacancies without nominees is in a state with two Democratic senators. 14
D. Composition of the Courts President Obama has finally managed to achieve near-parity in judicial appointments by party. The percentage of Republican versus Democratic appointees has gradually shifted during the Obama Presidency. Courts of appeals have moved from 38.7% to 50.9% Democratic, while district courts have moved from 41.4% to 49.7% Democratic. There are currently 392 active Republican-appointed federal judges and 390 active Democratic-appointed judges. While on the surface, this may appear balanced, it is important to note that by the end of President Bush s second term, Republican-appointed judges dominated the judiciary, holding 59.4% of federal judgeships, while today approaching five years into Obama s presidency Democratic appointees are still the minority on the federal bench, with 49.9% of total judgeships. Nominating-Party Composition of the Courts: the Past Three Presidencies Party As of 10/22/13 Democratic- Appointed Republican- Appointed End of Bush Administration Democratic- Appointed Republican- Appointed Supreme Court Courts of Appeals Percentage Courts of Appeals District Courts Percentage of District Courts Total Judges Percentag e of Total Judges 4 83 50.9% 303 49.7% 390 49.9% 5 80 49.1% 307 50.3% 392 50.1% 2 64 38.7% 261 41.4% 327 40.6% 7 101 61.3% 370 58.6% 478 59.4% During President Obama s tenure the circuit courts have shifted from 10 circuits controlled by Republicans, one by Democrats, and two equally divided, to four circuits controlled by Republicans, seven controlled by Democrats, and two that are evenly divided. The Second, Third, and Federal Circuits have switched from being evenly divided to being majority Democratic-appointed. The First, Fourth and Eleventh Circuits have switched from being majority Republican-appointed to being majority Democratic-appointed. The Fifth, Sixth, Seventh, and Eighth Circuits have retained their Republican-appointed majorities, and the Ninth Circuit has retained its Democratic-appointed majority. The Tenth and D.C. Circuits have moved to an even split. When Carolyn McHugh and Nancy Moritz both nominees with the support of two Republican home-state senators receive confirmation votes, the Tenth Circuit will also flip to a Democratic-appointed majority. The Administration has moved more quickly in nominating judges to fill circuit court vacancies in the second term, shifting pressure to the Republican minority in the Senate to move forward in confirming highly qualified pending nominees. 15
Circuit Courts of Appeals Breakdown By Appointing President s Party Circuit Total Seats at end of Bush II Republican- Appointed Judges Democrat- Appointed Judges Vacancies Partisan Control at End of Bush II Total Seats At Beginning of Obama New Vacancies During Obama Current Republican- Appointed Judges Current Democrat- Appointed Judges Vacancies Partisan Control (as of 10/22/13) First 6 3 2 1 Republican 6 2 2 3 1 Democratic Second 13 6 6 1 Even 13 3 5 8 0 Democratic Third 14 6 6 2 Even 14 3 5 7 2 Democratic Fourth 15 7 4 4 Republican 15 1 6 10 0 Democratic Fifth 17 13 4 0 Republican 17 4 10 5 2 Republican Sixth 16 10 5 1 Republican 16 3 10 5 1 Republican Seventh 11 7 3 1 Republican 11 1 7 3 1 Republican Eighth 11 9 2 0 Republican 11 1 8 3 0 Republican Ninth 28 11 16 1 Democratic 29 4 9 18 2 Democratic Tenth 12 8 4 0 Republican 12 3 5 5 2 Even Eleventh 12 7 5 0 Republican 12 5 4 5 3 Democratic Federal 12 8 4 0 Republican 12 5 5 7 0 Democratic D.C. 11 6 3 2 Republican 11 2 4 4 3 Even Total 178 9 101 64 13 10 Republican 1 Democratic 2 Evenly Split IV. Conclusion 179 36 80 83 17 4 Republican 7 Democratic 2 Evenly Split While it is critical for President Obama to fill the vacancies plaguing the judiciary, it is equally important that he put forth nominees who have professional as well as ethnic, gender, and racial diversity. These nominees should be committed to upholding progressive values, as Republican presidents have fought long and hard to pack the courts with conservatives who have left an unfortunate mark on federal law over the past several decades. President George W. Bush, in particular, nominated ideological warriors to the federal courts. His circuit court nominees have played a critical role in scaling back environmental and consumer protection, rights of the accused, and civil rights over the past decade. One example is Janice Rogers Brown, who has used her position on the D.C. Circuit Court of Appeals as a pulpit for decrying progressive values. In one opinion that attracted notice from both liberal and conservative commentators for its less-than-judicial tone, Judge Brown criticized a century of Supreme Court precedent, lamenting that America s cowboy capitalism was long ago disarmed by democratically-enacted laws and regulations. The Senate must also meet its obligation to swiftly confirm qualified nominees. Senate Republicans should not be permitted to use obstructionist tactics such as withholding blue slips, filibustering nominees, or simply ignoring longstanding vacancies in their home states to hamstring the federal courts and limit the ability of all Americans to seek justice. 16
Appendix I: Nominees Pending on the Senate Floor as of 10/22/2013 Nominees* Nominated To Days Seat Vacant Days Pending Nomination Date SJC Hearing Date Judiciary Committee Vote Emergency? Gender Race** Patricia Millett D.C. Cir. 2918 113 6/4/13 7/10/13 10-8 F W Gregory Woods SD NY 268 139 5/9/13 7/10/13 Voice Vote M AfA Debra Brown ND MS 610 132 5/16/13 7/10/13 Voice Vote F AfA Elizabeth Wolford WD NY 284 132 5/16/13 7/10/13 Voice Vote Yes F W Cornelia Pillard D.C. Cir. 712 113 6/4/13 7/24/13 10-8 F W Brian Morris MT 268 125 5/23/13 7/24/13 Voice Vote Yes M W Susan Watters MT 191 125 5/23/13 7/24/13 Voice Vote Yes F W Landya McCafferty NH 177 125 5/23/13 7/24/13 Voice Vote F W Jeffrey Meyer CT 359 110 6/7/13 7/24/13 Voice Vote M W Total:9 2 circuit; 7 district Total: 6039 (16.5 years) Total: 1366 (3.7 years) 9 unopposed; 2 party line 3 Judicial Emergencies 6 F; 3 M 2 AfA; 7 W 17
Appendix II: Vacancies Without Nominees Maps as of 10/22/2013 18
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Notes 1 Two of President Obama s three D.C. Circuit nominees have been reported out of the Judiciary Committee; the third is expected to receive his committee vote in early October. For a full list of Pending Nominees, see infra page 16. 2 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). 3 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 http://www.csmonitor.com/commentary/opinion/2011/0526/to-leave-a-liberal-legacy-in-thecourts-obama-must-imitate-the-gop. 4 Data from President Carter through President George W. Bush is gathered from W. BUSH S JUDICIAL LEGACY by Sheldon Goldman, Sara Schiavoni in JUDICATURE Volume 92, Number 6, May-June 2009, pages 279 and 284. All data is the age at nomination. T 5 Jennifer Bendery, Marco Rubio Blocks Gay Black Judge s Nomination to the Federal Bench, Puzzling Everyone, THE HUFFINGTON POST, September 26, 2013, available at http://www.huffingtonpost.com/2013/09/26/marcorubio-gay-black-judge_n_3996156.html. 6 Alliance for Justice, Senator Whitehouse Calls Out Republican Delay and Obstruction of Judicial Nominations, YOUTUBE (May 10, 2013), http://www.youtube.com/watch?v=2cot6lda7p4 (Committee video excerpted by Alliance for Justice). 7 While Senator Rubio finally agreed to support Brian Davis in September 2013, Davis has been pending for nearly two years due to obstruction of his nomination. After turning in his blue slip in 2012, Rubio refused to submit a blue slip in the 113 th Congress for eight months. As a result, Davis has languished in the Senate Judiciary Committee since his nomination on February 29, 2012. 8 See U.S. Congressional Research Service. President Obama s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan, (RL43058; May 2, 2013), by Barry J. McMillion (explaining that, during his first term, President Obama s district court nominees waited an average of 221.8 days from nomination to confirmation, while President George W. Bush s first term district court nominees waited an average of 156.2 days); U.S. Congressional Research Service, Cloture Attempts on Nominations: Data and Historical Development, (R32878; June 26, 2013), by Richard S. Beth (tracking cloture action on judicial and executive nominations by time-period, from 1967-2012). 9 Pub. L. No. 110-177 (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, 2009. 21