THE STATE OF THE JUDICIARY Judicial Selection During the 113 th Congress

THE STATE OF THE JUDICIARY Judicial Selection During the 113 th Congress June 10, 2014 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. 2014 Alliance for Justice

Contents Contents 3 I. Executive Summary 4 II. President Obama s Impact on the Federal Courts after More than Five Years in Office.7 A. Senate Rules Reform 7 B. Confirmations... 9 C. Vacancies. 10 D. Composition of the Courts.. 11 E. Judicial Emergencies. 12 III. President Obama s Judicial Nominees... 13 A. Nominees Demographic and Professional Backgrounds... 13 Professional Diversity...13 Racial, Gender, Sexual Orientation, and Disability Diversity... 15 Age. 16 B. Nominations 18 C. Early-Stage Obstruction of Judicial Nominees.. 19 IV. Conclusion. 21 Appendix I: Nominees Pending on the Senate Floor as of 6/10/2014. 22 Appendix II: Vacancies Without Nominees Maps as of 6/4/2014.. 23 Notes 26

I. Executive Summary In our last State of the Judiciary report in October 2013, we reported an unprecedented judicial vacancy crisis fueled by Republican obstruction at all stages of the confirmation process. There was also a question of whether the obstruction would go unchecked, leaving judicial nominees mired in Senate gridlock and further limiting the federal courts ability to provide justice. The subsequent six months have provided a clear and hopeful answer: Senate Democrats, led by Majority Leader Harry Reid, D-Nev., have responded boldly to mindless obstruction, making judicial confirmations a top priority on the Senate floor. While much work remains to be done, the Senate has already confirmed 47 judges this year (compared to 22 in the first five months of 2013), and the judiciary now has the lowest total of current vacancies in five years. Over the last five years, President Obama has consistently faced more than 100 total judicial vacancies and 30 judicial emergencies a designation for courts that do not have enough to judges to handle their existing caseload. When we issued our October report, there were 111 total vacancies and 37 judicial emergencies, both high numbers that reflect a drastically understaffed judiciary. Since the president increased the pace of nominations in his second term, these persistent vacancies were born of obstruction and delay tactics by Republican Senators. In recent months, however, Senate Democrats have made clear that they will protect democratic process in the Senate, and that obstruction and gridlock cannot be the new norm for judicial nominees. First, last November the Senate Republicans blatantly abused the filibuster by blocking all of President Obama s three D.C. Circuit nominees from receiving an upor-down confirmation vote. This obstruction was not prompted by a substantive objection to any of the exceptionally well-qualified nominees, but was instead a blanket refusal to let the President fill vacancies on the vitally important D.C. Circuit. Senate Democrats responded to this partisan obstruction by changing the filibuster rule for district and circuit court nominees, eliminating the super-majority 60 vote requirement to invoke cloture and proceed to a confirmation vote. As a result, three D.C. Circuit nominees were confirmed, thus giving the court its full complement of 11 active judges. Since then, rules reform has been an essential part of other circuit court confirmations. Judges Michelle Friedland and John Owens of the Ninth Circuit, and Judge David Barron of the First Circuit all well-credentialed nominees who had broad bipartisan support in the legal community were each confirmed with fewer than 60 votes. But while rules reform enabled President Obama to fill a number of important circuit court vacancies, it could not alone solve the vacancy crisis writ large. Unable to sustain a filibuster, Republicans shifted to new forms of obstruction on the Senate floor. In 2014, Republicans have refused to allow confirmation via unanimous consent or agreed-upon votes the traditional means of confirming judicial nominees, particularly for non-controversial district court judges and have insisted 4

that each nomination consume as much floor time as possible. 1 This tactic has been especially problematic for confirming circuit court judges, because Senate Republicans can demand and have demanded 30 hours of post-cloture debate time for each circuit nomination. These demands persist despite Republicans almost complete failure to use the post-cloture time to actually debate the merits of the nominee in question. Consequently, by the end of April 2014 a substantial backlog of 31 judicial nominees including six circuit court nominees had accumulated on the Senate s floor calendar (this time last year, only seven judicial nominees were waiting for a confirmation vote). Many of these nominees would have been confirmed last year but for long delays generated by Republican Senators; at the end of 2013, Republicans demanded that 55 judicial nominees be sent back to the White House, including nine who had been pending on the Senate floor. When the Senate returned from April recess, Majority Leader Reid, with the support of the Democratic caucus, responded to these costly delays by filing cloture petitions and forcing votes on successive groups of nominees or, as Alexander Bolton of The Hill described it, Reid hit the gas on judicial nominees. 2 During the week of April 28, for example, the Senate held eight cloture votes and confirmed eight judges. The following week, the Senate confirmed another four judges after four more cloture votes. All told, the Senate confirmed 22 judges (including five circuit judges) during the month-long work period, dramatically reducing the number of nominees pending on the floor from 31 to 13, 3 the total number of current vacancies from 87 to 67, and the number of judicial emergencies from 36 to 25. These confirmations also influenced the overall composition of the federal courts; Democratic-appointed judges hold a 6% advantage in the federal courts, and nine circuit courts of appeals have a majority of Democratic-appointed judges. Another area of improvement has been the professional diversity of President Obama s nominees. In conjunction with a February event keynoted by Senator Elizabeth Warren, Alliance for Justice released a report on the professional backgrounds of judicial nominees that sparked a national conversation. 4 A number of major news outlets, including the New York Times, responded with articles addressing the imperative that federal judges not only look like the American people, but also reflect the full breadth of the legal profession. 5 Since the report s release, lawyers with experience working in the public interest have been nominated at a substantially higher rate than during President Obama s first five years in office. For example, the president s very first judicial nominees of 2014 four lawyers each named to a different district court vacancy have spent their legal careers in courtrooms fighting for individual rights. Richard Boulware, a nominee to the District of Nevada, is currently the Federal Public Defender in Nevada, and previously served as trial attorney for the Federal Defenders of New York. Salvador Mendoza, a state court judge nominated to the Eastern District of Washington, was previously a solo practitioner who often represented indigent criminal defendants. And both Stephen Bough and Staci Yandle, nominees to the Western District of 5

Missouri and the Southern District of Illinois respectively, have spent their entire careers representing individual plaintiffs in civil litigation. *** Below, this report provides detailed statistical analysis of federal judicial vacancies, nominations, and confirmations throughout the Obama administration. In brief, the report documents that: During President Obama s time in office, current vacancies have risen by 13%. This is in contrast to the same point in President Clinton s and President Bush s second terms, when vacancies had declined by 32% and 43%, respectively. [See infra, page 10] 7.2% of all federal judgeships are vacant. This is a significant reduction from one month ago, in April 2014, when 10% of federal judgeships were vacant. As of June 1, there are 19 more judicial vacancies than at the same point in President George W. Bush s second term, but eight fewer than in President Clinton s presidency. [See infra, page 10] 87% of President Obama s nominees have been confirmed; comparatively, President George W. Bush and President Clinton had confirmation rates of 90% and 81% respectively this far into their second terms. [See infra, page 10] Overall, states with at least one Republican Senator account for 87% of all current vacancies without nominees, and states with two Republican Senators account for 55% of all current vacancies without nominees. Texas and Pennsylvania together account for 50% (19 of 38) of all current vacancies without nominees. The number of seats considered to be judicial emergencies has risen by 25%, from 20 at the beginning of President Obama s term to 25. [See infra, page 12] President Obama s appointments have given Democratic-appointed judges an overall majority on the federal courts. Since the end of the Bush Administration, the percentage of Republican-appointed circuit court judges dropped from 61.3% to 46.5%, and the percentage of Republican-appointed district court judges dropped from 58.6% to 47.1%. [See infra, page 11] Nine circuit courts of appeals have a majority of Democratic-appointed judges, and four circuit courts have a majority of Republican-appointed judges. When President Obama took office, 10 circuit courts were controlled by Republicans, one was controlled by Democratic appointees, and two were evenly divided. [See infra, page 12] 6

The president has appointed the highest percentage of women (42%) and people of color (37%) in history. He has also appointed 8 openly gay federal judges, while only one had been confirmed prior to his administration. [See infra, page 16] There is a downward trend in the age of President Obama s circuit court appointees. So far in 2014, the Senate has confirmed six circuit court judges who were 50 years or younger at nomination, including three judges who were 42 or younger. [See infra, page 16] Looking ahead, another sensible and worthwhile reform in Senate rules would be a use it or lose it requirement on post-cloture debate time. When Senate Republicans demand to use the maximum amount of debate time before allowing a confirmation vote, they should be required to actually debate or discuss relevant matters not simply trigger delay for the sake of delay. This modest change would avoid time wasting without diminishing senators ability to address the merits of individual nominees. 6 In addition, with the increase in confirmations, attention must return to obstruction used to either block nominees in committee, or delay nominations in the first place. No nominee who lacks the support of both home-state senators has successfully moved through committee, and it has been White House practice to avoid nominating anyone 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 public accountability. In light of this problematic early-stage obstruction, the White House, Senate Judiciary Committee, and the full Senate should reconsider the various senatorial courtesies that have been too often exploited 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 Impact on the Federal Courts after More than Five Years in Office A. Senate Rules Reform Last November marked a new era for judicial confirmations when the Senate changed its rules so that an obstructionist minority cannot defeat critical executive branch and judicial nominees. The rules change was ultimately compelled by Senate Republicans repeated abuse of the filibuster as an attempt at nullification that is, to restrict the president s influence and ability to govern by blocking his nominees rather than as part of advice and consent on the qualifications of any particular nominee. 7

The first showdown over the Republicans nullification strategy came in July 2013. In an attempt to effectively shut down certain federal agencies they do not like, Senate Republicans wielded the filibuster to block seven key executive branch nominees, including the first permanent director of the Consumer Financial Protection Bureau, the Secretary of Labor, and several National Labor Relations Board members. 7 But after Majority Leader Reid threatened to eliminate the super-majority requirement to end debate on executive nominations, and the public made clear that such partisan gridlock was unpopular, the Republicans backed down. Senate Democrats therefore left the filibuster on nominees unchanged, and, in exchange, Senate Republicans agreed to allow confirmation votes on executive nominees for all seven positions, including two new nominees to the NLRB (who the president agreed to nominate in place of two recess appointments). In the fall, however, Senate Republicans expanded their strategy to the judiciary, and erected a partisan blockade between the White House and the D.C. Circuit Court of Appeals. Republicans opposed all three of President Obama s mainstream nominees Nina Pillard, Patricia Millett, and Judge Robert Wilkins arguing that the court s caseload did not justify confirming new judges and making outlandish claims of court packing. Senator Chuck Grassley, R-Iowa, even introduced legislation to remove all three seats from the D.C. Circuit by eliminating one entirely and moving two to other circuits. Of course, the Republicans were not actually concerned with caseload the Senate confirmed three George W. Bush nominees to the very same seats when the court s caseload was about the same or even lower and were instead trying keep the president s nominees, regardless of their individual merit, off the powerful D.C. Circuit. 8 In quick succession between October 31 and November 18 Senate Republicans used the filibuster to block confirmation votes for all three D.C. Circuit nominees, as well as for a nominee to the Federal Housing Finance Agency, Congressman Mel Watt. Faced with this political effort to hamstring the D.C. Circuit and undercut the president s constitutional authority to fill judicial and executive vacancies, Senate Democrats had no choice but to change the rules to restore functioning democracy. On November 21, the Senate voted 52 to 48 to eliminate the super-majority 60-vote requirement to end debate on all nominations except for those to the Supreme Court. Thus, for all executive branch and lower court judicial nominees, only a simple majority of those senators present and voting is needed to end a filibuster (or invoke cloture ). By January 13, 2014, the Senate had confirmed each of the D.C. Circuit nominees via simple majority, leaving the court fully staffed for the first time since 2005. 9 After the D.C. Circuit confirmations, rules reform also enabled the Senate to confirm judges to other circuit courts of appeals. Michelle Friedland and former federal prosecutor John Owens were each confirmed to the Ninth Circuit with fewer than 60 votes. Likewise, David Barron, a tenured law professor and former DOJ attorney, was confirmed with just 53 votes. In each case, the failure to garner 60 votes came despite broad support from across the ideological spectrum. For example, Republican 8

partners of Friedland s firm all of whom had clerked for either Justice Antonin Scalia, Justice Anthony Kennedy, or then-justice William Rehnquist, wrote that, Michelle Friedland has the talent, fairness, and integrity to be an outstanding Circuit Judge on the Ninth Circuit. 10 And in a joint op-ed supporting David Barron, law professors Charles Fried and Larry Tribe who acknowledged that the two of us frequently approach legal questions from different perspectives, and just as often disagree about the best answers to those questions wrote that [n]o one can reasonably question Barron s intelligence, the high quality of his scholarship, his judicial temperament, his deep respect for the rule of law, or his personal integrity and devotion to public service. 11 Yet despite these broad endorsements, these nominations likely would have succumbed to blind Republican obstruction but for the change in rules that allowed up-or-down confirmation votes. B. Confirmations Despite continued Republican obstruction on the Senate floor, the first five months of 2014 have brought a dramatic increase in the number and pace of judicial confirmations. President Obama had 19 judicial confirmations by the end of March the best first quarter of any year during his administration. And after the Senate confirmed John Owens to the Ninth Circuit in April 2014, President Obama s total number of confirmations surpassed those of President George W. Bush at the same point in his presidency. Still, when the Senate adjourned for April recess, a substantial backlog of judicial nominees remained pending on the floor. Senate Republicans continued to obstruct and delay confirmations by demanding cloture votes and the full allotment of postcloture debate time 30 hours for circuit court judges and two hours (though Democrats can yield back one hour) for district court judges for each nominee. Even before rules reform, Senator Reid filed cloture on 20 Obama district court nominees; to compare, Presidents Bush and Clinton each had cloture filed on only one of their district court nominees. 12 This practice has escalated since rules reform, and in 2014 Senate Republicans have forced a cloture vote on all judicial nominees including noncontroversial judges later confirmed unanimously. In the first five months of 2014, Senate Republicans forced cloture votes on eighteen district court nominees and three circuit court nominees who were then confirmed without a single nay vote. 13 When the Senate returned for its May work period, Senator Reid and the Senate Democrats responded to this obstruction by upping the pace of judicial confirmations. In less than one month between April 28 and the Memorial Day recess on May 23 the Senate confirmed 22 judges (including 5 circuit court judges), reducing the number of judicial nominees on the floor from 31 to 13. These recent confirmations have pushed President Obama well ahead of President Bush and brought him about equal to President Clinton for total confirmations this far into their second term: 9

This flurry of confirmations has also raised President Obama s confirmation rate. When we issued our last report in October, Obama s confirmation rate lagged well behind Bush II only 76% of Obama s nominees had been confirmed compared to 90% for Bush. Now President Obama s confirmation rate is only three percentage points behind his predecessor, and his confirmation rate for circuit court nominees is ten points higher 83% for Obama compared to 73% for Bush. C. Vacancies As noted above, the recent spate of judicial confirmations broke a longstanding trend in the number of current vacancies. For the last five years, the number of current judicial vacancies has hovered around 90, and there were 91 vacancies at the time of our last report in October. With 22 confirmations in the most recent work period, and six more in the last two weeks, there are now 62 current vacancies the lowest total in five years. In particular, the number of circuit court vacancies has dropped from 15 to 10 since April 28. While this rapid reduction represents significant progress, there remain more vacancies now than when President Obama took office in January 2009. Conversely, at this same point in their presidencies, Presidents Clinton and George W. Bush had both reduced the number of current judicial vacancies Clinton by 32% (from 107 to 73) and Bush by 43% (from 80 to 46). President Obama has also had 34 more vacancies to fill than did Bush at this point (323 to 289). 10

D. Composition of the Courts With the major push by Senate Democrats to confirm the long list of pending judicial nominees, the federal judiciary has shifted from a slight majority in favor of Republican-appointed judges to a full 6% advantage for Democratic appointees (53% to 47%). Over the course of President Obama s administration, the circuit courts of appeals have gradually moved from 38.7% to 53.5% Democratic, while district courts have shifted from 41.4% to 52.9% Democratic. There are currently 380 active Republicanappointed federal judges, and 428 Democratic-appointed judges. At this same point in President George W. Bush s presidency, Republican-appointed judges held a 453 (55.3%) to 366 (44.7%) majority, and 59.4% of federal judges were Republican appointees by the end of 2008. Nominating-Party Composition of the Courts: the Past Two Presidencies Party As of 6/4/14 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 Percentage of Total Judges 4 91 53.5% 335 53.1% 430 53.1% 5 79 46.5% 296 46.9% 380 46.9% 2 64 38.7% 261 41.4% 327 40.6% 7 101 61.3% 370 58.6% 478 59.4% 11

During President Obama s tenure, the Second and Third Circuits have switched from evenly divided to majority Democratic-appointed; the First, Fourth, Tenth, Eleventh, D.C., and Federal Circuits have switched from majority Republican-appointed to 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. This year s confirmations of eight circuit judges have propelled a further shift in the number of circuit courts with a majority of Democratic-appointed judges. Since our October report, two more circuit courts the Tenth and D.C. Circuits have transitioned to a Democratic majority. Now there are nine circuits controlled by Democrats and four controlled by Republicans. When President Obama took office, Republican appointees held a majority in 10 circuit courts, Democratic appointees held a majority in one, and two were equally divided. Circuit Courts of Appeals Breakdown By Appointing President s Party Circuit Total Seats at end of Bush II Republican- Appointed Judges Democratic 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 Democratic Appointed Judges Vacancies Partisan Control (as of 6/10/14) First 6 3 2 1 Republican 6 2 2 4 0 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 2 5 9 1 Democratic Fifth 17 13 4 0 Republican 17 5 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 20 0 Democratic Tenth 12 8 4 0 Republican 12 3 5 7 0 Democratic Eleventh 12 7 5 0 Republican 12 6 3 6 3 Democratic Federal 12 8 4 0 Republican 12 5 5 7 0 Democratic D.C. 11 6 3 2 Republican 11 2 4 7 0 Democratic Total 178 101 64 13 10 Republican 1 Democratic 179 40 78 91 10 4 Republican 9 Democratic E. Judicial Emergencies Among the 22 judges confirmed during the Senate s last work period, 12 filled seats that the Administrative Office of U.S. Courts had designated as judicial emergencies, which means the courts do not have enough judges to handle their existing caseloads. With these 12 confirmations, the total number of judicial emergencies dropped from 36 to 25. Nonetheless, that number is unsustainably high, and remains an increase from the federal judiciary s 20 emergencies when President Obama took office. Just two of the 13 emergency vacancies without a nominee are in 12

states with two Democratic senators, while the other 11 are in states with at least one Republican senator. III. President Obama s Judicial Nominees Seventeen months into his second term, President Obama s record on judicial nominations reveals three overarching trends: 1) his nominees historic personal diversity; 2) a recent increase in the number of nominees with experience representing individuals and working in the public interest; and 3) a higher nomination rate particularly in states with two Democratic Senators after a slow start at the beginning of his first term. A. Nominees Demographic and Professional Backgrounds Professional Diversity In February 2014, Alliance for Justice released a comprehensive (and regularly updated) report that analyzes the professional experience of every Obama judicial nominee. 14 The report found that lawyers with experience working as public defenders, plaintiff lawyers who represent individuals like consumers or employees, civil rights attorneys, and lawyers at public interest organizations are dramatically underrepresented on the federal bench. Specifically, the report finds that, of President Obama s nominees: Only 10 fewer than four percent have worked as lawyers at public interest organizations; Only 12 have significant experience representing workers in labor and employment disputes; and Prosecutors outnumber public defenders (state or federal) by more than three to one. Broad professional diversity is essential to both enhance judicial decisionmaking and to preserve public trust in our justice system. Judges with experience advocating for individual rights and particularly the rights of society s more marginalized, less privileged members bring a perspective to the bench that helps them understand 13

the claims of everyday Americans. In addition, the perception of a fair and impartial judiciary is heightened when public interest lawyers are fairly represented on the bench. When people enter the courthouse with their fundamental rights or liberty at stake, they should feel like their day in court is a meaningful opportunity to be heard, not a mere formality. A federal bench devoid of lawyers who have represented everyday Americans or otherwise worked for the public interest, however, is less likely to inspire public confidence. Responsibility for increasing the professional diversity of our federal courts extends well beyond the White House, and includes all 100 Senators as well as the selection commissions established by senators to initially screen and interview candidates for judicial vacancies. By tradition, home state senators typically take the lead in selecting candidates for district court vacancies, and in some jurisdictions that senatorial courtesy also extends to circuit court nominations. That s why, in March 2014, Alliance for Justice submitted a letter to every U.S. Senator urging them to work toward filling judicial vacancies with judges who are not only exceptionally wellqualified, but who also reflect the full diversity of the legal profession. 15 Looking at nominations so far in 2014, the outlook for a professionally diverse bench is promising. With Senate rules reform allowing for a more inclusive approach to judicial nominations, President Obama s most recent nominees suggest that professional diversity is a high priority. Of the 18 men and women nominated so far this year, 13 (or 72%) have prior experience as public defenders, solo practice criminal defense lawyers, plaintiff attorneys who have represented individuals, or tenured academics. An additional 2014 nominee pending for the Third Circuit, Cheryl Krause, established a partnership between the Public Interest Law Center of Philadelphia and her law firm, Dechert LLP. Through this partnership, known as the Philadelphia Project, Krause has represented disabled children and their families, including in class action litigation. With more than two years left in office and more than 50 vacancies right now without a nominee, there is ample opportunity for the president with the essential cooperation of the Senate to continue this trend and to further broaden the bench with more professionally diverse judges. Below, two charts provide an overview of the professional backgrounds for all of President Obama s circuit and district court nominees. Additional statistics can be found in AFJ s report, Broadening the Bench: Professional Diversity and Judicial Nominations. 14

Racial, Gender, Sexual Orientation, and Disability Diversity President Obama s nominees have been the most diverse in American history. Fortytwo percent of his appointees have been women and 37% have been people of color, a far higher percentage than any of his predecessors. President Clinton has the next best record; 29% of his appointees were women and 24% of his appointees were people of color. President Obama has already appointed nearly five times as many Asian Americans (19 to 4), and nearly twice as many African Americans (46 to 24), as President George W. Bush appointed in his entire presidency. And with Michelle Friedland s confirmation to the Ninth Circuit in April, Obama reached the milestone of appointing 100 female federal judges. President Obama has now appointed 111 women, while Bush appointed a total of 71. President Obama also has the best record of any president in appointing openly gay federal judges. Eight openly gay nominees have been confirmed so far, including Todd Hughes, the first openly gay circuit court judge, and two more are pending. 15

Darrin Gayles, currently pending for a seat in the Southern District of Florida, would be the first openly gay African American man on the federal bench. Prior to the Obama presidency, only one openly gay nominee had been confirmed to a lifetime judgeship. What s more, President Obama s 26 pending judicial nominees would only add to the diversity of the federal bench: More than 50% of pending judicial nominees are women, and more than 30% are African American. Article III (Lifetime) Judges by Gender and Ethnicity 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 265* 26* 154 (58.1%) 12 (46.2%) 111 (41.9%) 14 (53.8%) 172 (64.9%) 16 (61.5%) 46 (17.4%) 8 (30.8%) Hispanic 29 (10.9%) 2 (7.7%) Asian Pacific American Native American 19 1 (7.2%) (0.4%) 0 0 Native Hawaiian or Other Pacific Islander 1 (0.4%) Openly GLBT People with Disabilities 8 1 0 2 0 14 9 5 7 5 0 1 1 0 2 0 305* 175 130 195 59 31 20 2 1 12 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 Age The average age of President Obama s appointees at nomination 51.2 years old remains considerably higher than the average age of the last three Republican presidents respective confirmed judges. Recent confirmations, however, suggest a downward trend in age, particularly in the circuit courts. So far in 2014, the Senate has confirmed six circuit court judges who were 50 years old or younger at nomination, including three judges (Michelle Friedland to the Ninth Circuit, John Owens to the Ninth Circuit, and Gregg Costa to the Fifth Circuit) who were 42 or younger. As a result, the average age of Obama s circuit court judges has dropped by more than one 16

year since our October report. If this trend continues over the remaining two and a half years of his presidency, President Obama s appellate court picks will average under 50 years in age. 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, and none so far in 2014. Moreover, the district court appointees of Presidents Bush II, Clinton, Bush I, Reagan, and Carter all averaged less than 50 years in age. Conversely, the average age of President Obama s district court judges is 51 years old. 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. 17

B. Nominations During his first term in office, President Obama significantly trailed Presidents George W. Bush and Clinton in 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. This recent increase in nominations is partly attributable to the relatively high vacancy rate during President Obama s administration; while in office, Obama has had 45 more new vacancies than Clinton, and 63 more new vacancies than Bush. 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. But 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 closing 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 in 2012 (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, and now there are only six circuit court vacancies without a nominee, all of which are in states with at least one 18

Republican senator. Overall, President Obama s pace in nominating circuit court judges has matched that of his immediate two predecessors, and now, nearly halfway into his sixth year in office, Obama has nominated about the same number of circuit judges as Presidents Clinton and Bush II. President Obama s increased nominations pace has closed the gap of current vacancies without nominees to 38 34 of which are in states with at least one Republican Senator. Particularly with the Senate increasing its pace in confirming judges and clearing the backlog of nominees on the Senate calendar, the president and home state Senators must move swiftly to name candidates for longstanding vacancies. C. Early-Stage Obstruction of Judicial Nominees Since our last report, Republican Senators have continued to use behind-the-scenes obstruction to delay nominations and prevent President Obama from filling vacancies, including long standing vacancies designated as judicial emergencies. Republicans have also abused the Judiciary Committee s blue slip courtesy to block well-qualified nominees in their home states even nominees they initially approved. These forms of obstruction, aimed at disrupting nominations early in the process, are particularly insidious because they often operate in secret, without public explanation or accountability. Senators typically have the primary responsibility for identifying district court candidates in their home states, and in some cases this prerogative extends to circuit court nominees as well. During President Obama s administration, Republican senators have used this privilege to delay the nomination process interminably, even with a growing list of vacancies and judicial emergencies. As we noted in our last report, a string of timely nominations in states with two Democratic senators brought this form of Republican obstruction into sharp focus: 87% of current judicial vacancies without a nominee are in states with at least one Republican Senator; Texas and Pennsylvania combine for 19 of those vacancies 50% of the national total. 16 Texas is a particularly egregious example of this delaying tactic. Texas has 11 district court vacancies (eight are currently vacant, three more have been announced) and two Fifth Circuit vacancies without a nominee. One seat in the Western District of Texas has been empty nearly six years, since November 2008. Two others one each in the Southern and Eastern Districts have been vacant well over two years. Six of these vacancies are judicial emergencies. Despite this vacancy crisis, it took Senators John Cornyn and Ted Cruz until April 2013 to set up a selection committee. The committee then took seven months, until December 2013, to select finalists for six of the current district court vacancies, and did not consider a seventh vacancy in the Northern District. Now five months later, the White House is still waiting for the senators to provide a full slate of names, and the selection committee has not yet turned its attention to either the five remaining district court seats or the Fifth Circuit. 19

The White House can nominate without home state senator support, but is reluctant to do so, even in cases of egregious delay, because of the Judiciary Committee s blue slip courtesy. When the President makes a nomination, the Judiciary Committee sends a blue sheet of a paper to each home state senator asking whether he or she approves of the nominee. And until both blue slips are returned favorably, the Committee s Chairman, Senator Patrick Leahy, D-Vt., will not hold a confirmation hearing. This practice is an important part of the Senate s constitutional obligation to provide advice and consent because it ensures that senators have a meaningful say in who will serve their constituents as federal judges. But it also means that a nomination can be held up indefinitely, and ultimately defeated, by a single unreturned blue slip. One such defeat came in January 2014, when President Obama decided not to renominate Southern District of Florida nominee William Thomas because of Republican Senator Marco Rubio s objection. 17 Thomas, a Florida state court judge, would have been the first openly gay African American man in the federal judiciary, and would have filled a judicial emergency. Senator Rubio had pledged to support all nominees recommended by the commission he and Democratic Senator Bill Nelson established, but he never returned a blue slip for Judge Thomas despite the commission s recommendation. Senator Rubio s only stated reason for rescinding his support that Judge Thomas had been too lenient in two criminal cases was publicly refuted by state prosecutors. 18 In any event, without a confirmation hearing Judge Thomas never had the opportunity to respond to Senator Rubio s concerns, and was left pending for over a year before the White House pulled his nomination. Another ongoing blue slip delay is in the Eastern District of North Carolina, where federal prosecutor Jennifer May-Parker has been nominated to the oldest vacancy in the country the seat, a judicial emergency, has been empty since 2005. May-Parker would be the first African American to serve in the Eastern District, and the first African American woman to serve in any of North Carolina s federal district courts. Republican Senator Richard Burr recommended May-Parker for the seat back in 2009, but has withheld his blue slip without explanation since her nomination in 2013. 19 North Carolina s other Senator, Democrat Kay Hagan, returned her blue slip for May-Parker last year. Last July, public anger over Senate gridlock forced Republicans to back down from their public obstruction of a slate of executive branch nominees. Then in November, transparently political filibusters of the President s nominees to the D.C. Circuit, as well as a nominee to the Federal Housing Finance Agency, required rules reform to protect democratic process in the Senate. Early-stage obstruction of the judicial nomination process, while not as public, is no less real or harmful to our judiciary than filibuster abuse on the Senate floor. To be sure, home state senators ability to meaningfully consult with the president about judicial nominations should be preserved. But as with the filibuster, when certain traditions and courtesies are abused, the White House and Senate leadership should consider reforms to ensure that the federal judiciary is not held hostage to political brinksmanship. 20

IV. Conclusion With the 2014 mid-term elections approaching, the good news is that Senate Democrats have placed a heavy emphasis on confirming judges and clearing judicial nominees from the Senate calendar. But the recent increase in confirmations has come despite Republican obstruction that continues to threaten the confirmation process, and calls into question the Senate s ability to confirm recent nominees before November. Particularly given these ongoing efforts to slow-walk judicial confirmations, it is imperative that President Obama make nominations to longstanding vacancies. These nominations should continue the trend of supremely qualified nominees who add both personal and professional diversity to the federal bench. Finally, both President Obama and Senate Democrats should consider reforms to the courtesies and traditions that permit Senate Republicans to delay and obstruct the nomination process at its earliest stages. Whether it is filibuster abuse on the Senate floor, permitting home state vacancies to languish indefinitely, or withholding blue slips on agreed-upon nominees, Senate Republicans should not be allowed to hamstring the federal courts and limit the ability of all Americans to seek justice. 21

Appendix I: Nominees Pending on the Senate Floor as of 6/10/2014 Nominees Nominated To Nomination Date SJC Hearing Date Reported Out of Committee Judiciary Committee Vote Emergency? Gender Race Salvador Mendoza ED WA 1/16/2014 3/12/14 4/3/14 17-1 M H Staci Yandle SD IL 1/16/2014 3/12/14 4/3/14 17-1 Yes F AfA Cheryl Ann Krause 3d Cir. (PA) 2/5/2014 3/12/14 4/3/14 Voice Vote F W Beth Bloom SD FL 2/5/2014 4/1/14 5/8/14 Voice Vote Yes F W Darrin Gayles SD FL 2/5/2014 4/1/14 5/8/14 Voice Vote Yes M AfA Carlos Mendoza MD FL 2/5/2014 4/1/14 5/8/14 Voice Vote Yes M H Paul Byron MD FL 2/5/2014 4/1/14 5/8/14 Voice Vote Yes M W Total: 7 1 circuit, 6 district 5 Emergencies 3 F, 4 M 3 W, 2 AfA, 2 H 22

Appendix II: Vacancies Without Nominees Maps as of 6/4/2014 23

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Notes 1 See Niels Lesniewski and Humberto Sanchez, Nuclear Nominations Aftermath Slows Senate to Crawl, ROLL CALL (Apr. 14, 2014), available at http://blogs.rollcall.com/wgdb/nuclearnominations-aftermath-slows-senate-to-crawl/. 2 Alexander Bolton, Reid Hits the Gas on Judicial Nominees, THE HILL (May 26, 2014), available at http://thehill.com/homenews/senate/207157-reid-hits-the-gas-on-court-nominees. 3 The reduction in nominees pending on the Senate floor was partially offset by the Senate Judiciary Committee reporting out additional nominees. 4 Alliance for Justice, Broadening the Bench: Professional Diversity and Judicial Nominations (March 2, 2014), available at http://www.afj.org/reports/professional-diversity-report. 5 Editorial, The Homogenous Federal Bench, THE NEW YORK TIMES (February 6, 2014), available at http://www.nytimes.com/2014/02/07/opinion/the-homogeneous-federalbench.html?_r=0. 6 See Humberto Sanchez, Democrats Eye Nuclear Option Redux, ROLL CALL, (May 20, 2014) (quoting senior Democratic aide: It s called debate time for a reason... It s supposed to be used for debate, not to run out the time arbitrarily. Republicans are making a good case for use it or lose it. ), available at http://blogs.rollcall.com/wgdb/democrats-eye-nuclearoption-redux/?dcz. 7 See Jonathan Weisman and Jennifer Steinhauer, Senators Reach Agreement to Avoid Fight Over the Filibuster, THE NEW YORK TIMES (July 16, 2013) (quoting Republican Senator Lindsay Graham, [CFPB director nominee Richard] Cordray was being filibustered because we don t like the law.... That s not a reason to deny someone their appointment. We were wrong. ), available at http://www.nytimes.com/2013/07/17/us/politics/senators-nearagreement-to-avert-fight-over-filibuster.html?pagewanted=1&_r=0. 8 See Paul Gordon, What the GOP isn t saying about the D.C. Circuit s Caseload, PEOPLE FOR THE AMERICAN WAY BLOG, (Sept. 9, 2013), available at http://blog.pfaw.org/content/whatgop-isnt-saying-about-dc-circuits-caseload. 9 Alliance for Justice and its partners in the Fix the Senate Now coalition including Common Cause, the Sierra Club, and the Communications Workers of America led the lobbying effort to reform Senate rules on nominations. In December, The Hill recognized Fix the Senate Now s work on rules reform as one of the Top 10 lobbying victories of 2013. See Kevin Bogardus, Top 10 Lobbying Victories of 2013, THE HILL, (Dec. 17, 2013), available at http://thehill.com/business-a-lobbying/business-a-lobbying/193465-top-10- lobbying-victories-of-2013. 10 Letter to The Hon. Patrick J. Leahy and The Hon. Charles E. Grassley, available at http://www.judgingtheenvironment.org/library/letters/friedland-partners.pdf. 11 Charles Fried and Laurence H. Tribe, David Barron Should be Confirmed to US Court of Appeals, THE BOSTON GLOBE, Opinion (May 13, 2014), available at http://www.bostonglobe.com/opinion/2014/05/12/david-barron-should-confirmedcourt-appeals/5whjpfvmfhqulsmwxo81ck/story.html. 12 See 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). 13 See Stephen Spaulding, Two Shameful Milestones, COMMON CAUSE, COMMON BLOG (March 31, 2014), available at http://www.commonblog.com/2014/03/31/two-shamefulmilestones/. 26

14 Alliance for Justice, Broadening the Bench: Professional Diversity and Judicial Nominations (March 2, 2014), available at http://www.afj.org/reports/professional-diversity-report. 15 The letter was signed by more than 30 labor, civil rights, environmental, good government and other groups, and is available at: http://www.afj.org/wpcontent/uploads/2014/03/letter-to-senators-re-professional-diversity-3.27.2014.pdf. 16 See Andrew Cohen, How to Secede from the Union One Judicial Vacancy at a Time, THE ATLANTIC (Apr. 8, 2014), available at, http://www.theatlantic.com/politics/archive/2014/04/how-to-secede-from-the-unionone-judicial-vacancy-at-a-time/360207/. 17 See Jennifer Bendery, White House Gives Up on William Thomas, Gay Black Judicial Nominee Blocked by Marco Rubio, THE HUFFINGTON POST (Jan. 7, 2014), available at, http://www.huffingtonpost.com/2014/01/07/marco-rubio-judicialnominee_n_4557185.html. 18 See Lizette Alvarez, Rubio Withdraws Support for Gay Black Judge s Nomination to the Federal Bench, THE NEW YORK TIMES (Sept. 23, 2013), available at, http://www.nytimes.com/2013/09/24/us/politics/rubio-withdraws-support-for-gayblack-judges-nomination-to-the-federal-bench.html. 19 See Jennifer Bendery, Richard Burr Dodges Questions on Why He s Blocking a Judicial Nominee He Previously Supported, THE HUFFINGTON POST (Jan. 14, 2014), available at http://www.huffingtonpost.com/2014/01/14/richard-burr-judicialnominee_n_4597470.html. 27