THE STATE OF THE JUDICIARY Unfinished Business: Judicial Selection During the Remainder of the Obama Presidency

THE STATE OF THE JUDICIARY Unfinished Business: Judicial Selection During the Remainder of the November 19, 2012 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. 2012 Alliance for Justice

Contents I. Executive Summary... 4 II. President Obama s Judicial Nominees... 5 A. Nominees Demographic and Professional Backgrounds... 5 Racial and Gender Diversity... 5 Age... 6 Professional Diversity... 8 B. Nominations... 9 III. Obama s Record after Almost Four Years in Office... 11 Confirmations...11 Vacancies...12 Judicial Emergencies...13 Composition of the Courts...13 IV. Four Years of Unfilled Vacancies; Cries for Help from the States... 15 Appendix: Nominees Pending on the Senate Floor as of 10/22/2012... 21 Notes...22

I. Executive Summary As President Obama finishes his first term and looks forward to his second, the cumulative effects of Republican senators ceaseless obstruction of judicial nominees is evident: the President will complete his fourth year in office with more vacancies and judicial emergencies than when he was inaugurated and with far fewer confirmations than his two predecessors had at the end of their first terms. In short, while the President has enjoyed some major judicial selection victories most notably his appointments to the Supreme Court his first term has largely been a missed opportunity to fully staff the lower federal courts. Given the current situation, the President has a significant amount of unfinished business to complete during the remainder of his presidency. So what needs to happen to fix the existing mess? In the short-term, the Senate needs to confirm all of the 19 nominees currently pending on the Senate floor during the lame duck session. 1 Fourteen of the nineteen nominees faced no substantive opposition in the Judiciary Committee, and ten would fill judicial emergencies. Republicans blocked these nominees solely for political reasons to keep the seats open for a potential Republican president to fill. It is now time to put politics aside and fully staff our courts so that no one is denied access to justice. 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 vote on nominations. In the longer-term, the President needs to prioritize his judicial selection portfolio, and enhance his efforts to find and confirm nominees, and the Senate needs to reform its rules in order to prevent endless, indiscriminate obstruction. In brief, this report documents that: During President Obama s first term, current vacancies have risen by 51%. This trend stands in stark contrast to President Clinton and President Bush s first four years, when vacancies declined by 65% and 34%, respectively. [See infra, page 12] Nearly one out of eleven Federal judgeships remains vacant. Judicial vacancies are nearly triple what they were at this point in President George W. Bush s first term. [See infra, page 13] 1 For a full list of Pending Nominees, see infra page 16. 4

The number of seats considered to be judicial emergencies has risen by 65%, from 20 at the beginning of President Obama s term to 33. [See infra, page 13]. 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 11] 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 51.8%, and the percentage of Republican-appointed district court judges only dropped from 58.6% to 53.6%. [See infra, page 13] Republicans filibustered a historic number of district court nominees. Senate Majority Leader Harry Reid (D-NV) was forced to file cloture on a record 20 district court nominees. Cloture was filed on only one district court nominee during the Clinton and W. Bush presidencies. [See infra, page 12] In sum, 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. 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. II. President Obama s Judicial Nominees After almost four years in office, 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 and recent uptick in making district court nominations. 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-four percent of his appointees have been women and more than 37% 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. Additionally, President Obama has the best record of any president in appointing openly gay nominees to the bench. Three openly gay nominees have been 5

confirmed so far, and several more are pending in the Senate. Prior to the Obama presidency, only one openly gay nominee had been confirmed to a lifetime judgeship. Finally, President Obama has a poor record of appointing people with disabilities to the federal bench, as he has not nominated anyone with a disability to either the circuit our district courts. The following chart provides comparative data for the previous five presidencies. Article III (Lifetime) Judges by Gender and Ethnicity 1 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 160* 43 90 (56.2%) 27 (62.8%) 70 (43.8%) 16 (37.2%) 101 (63.1%) 28 (65.1%) 30 (18.8%) 5 (11.6%) Hispanic 19* (11.9%) 6 (14.0%) Asian American 11* (6.9%) 3 (7.0%) Native American Native Hawaiian or Other Pacific Islander Openly GLBT 0 0 3 0 1 (2.3%) 11 8 3 5 4 0 1 1 0 1 214* 125 89 134 39 25* 15* 1 1 6 327 378 193 383 262 256 (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 1 (0.2%) 3 0 1 0 0 0 0 2 (0.5%) 3 (1.1%) 0 0 0 1 (0.3%) 0 0 * 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 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, on average, 3-5 years older than Republican 6

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. 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 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. 3 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. 7

Looking forward, the president will need to nominate many more younger nominees if he wants to have a more lasting judicial selection legacy. 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. 8

Only two of the president s nominees Ed Chen, now Judge Chen of the Northern District of California, and Fernando Olguin, nominee to the Central District of California served as non-governmental public interest attorneys prior to their nomination. Moreover, the number of prosecutors, 97, far outweighs the number of public defenders, 30. The president has also nominated only 15 former academics. 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, though he has closed the gap during the last year. As indicated in the following 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. You can see, however, that President Obama has picked up the pace considerably in the last year, and now has made only 4 9

fewer district court nominations than President Bush and 28 fewer nominations than President Clinton at a comparable point in their presidencies. If this trend continues, it bodes well for the President s record in a potential second term. As for circuit court nominations, the President maintained a steady pace through his first three years, though things have fallen off somewhat in the last year. The president has also not matched President Bush s record of making nominations for almost every vacant seat. Largely as a result of the slow district court 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. 4 10

One reason why President Obama has not made nominations for many current vacancies is that 58% of existing vacancies are from states represented by at least one Republican Senator, which makes the process much slower, absent cooperation. III. Obama s Record after Almost Four Years in Office Confirmations The Senate has confirmed 41 fewer nominees at this point in President Obama s first term than it had confirmed for his two predecessors in office. Given that there are only 19 nominees pending on the Senate floor, even if all of those nominees are confirmed in the Senate s lame duck session, President Obama is assured of badly trailing both of his predecessors in the number of confirmations at the end of their first terms. This poor result is no accident. One contributing factor discussed above is the President s relatively slow nomination rate. Another factor, however, is the Senate s 11

very poor confirmation rate. As illustrated below, the Senate has confirmed a smaller percentage of President Obama s nominees than it did for his two predecessors. This discrepancy is largely due to the comparatively harsh treatment of the President s district court nominees. This new and dangerous escalation in the judicial confirmation battles largely stems 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 was so bad that Senate Majority Leader Harry Reid (D-NV) was 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 only had cloture filed on one of their nominees. Vacancies During President Obama s tenure, current vacancies have risen by 51% from 55 to 83. This trend stands in stark contrast to President Clinton and President Bush s first three years, when vacancies declined by 65% and 34%, respectively. 12

Given that there are only 19 nominees pending on the Senate floor, even if all of those nominees are confirmed in the Senate s lame duck session, President Obama will become the first president since Reagan, and possibly much earlier, 5 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 33 such seats as of November 12, up from 20 at the beginning of the Obama administration. 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 48.2% Democratic, while district courts have moved from 41.4% to 46.4% Democratic. There are currently 417 Republicanappointed federal judges and 367 Democratic-appointed judges. 13

Nominating-Party Composition of the Courts: the Past Three Presidencies Party As of 11/12/2012 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 4 79 48.2% 283 46.4% 367 46.8% 5 85 51.8% 327 53.6% 417 53.2% 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, 1 by Democrats, and 2 equally divided, to 7 circuits controlled by Republicans, 5 controlled by Democrats, and 1 that is equally divided. Specifically, the Second and Third Circuits have switched from being evenly divided to being majority Democrat-appointed. The Fourth and Eleventh Circuits have switched from being majority Republican-appointed to being majority Democratappointed. The Federal Circuit has switched from being majority Republicanappointed to being equally divided. 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. 14

Circuit Courts of Appeals Breakdown By Appointing President s Party Circuit Total Seats at end of Bush II Republican- Appointed Democrat- Appointed 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 (as of 10/22/12) First 6 3 2 1 Republican 6 1 3 2 1 Republican Second 13 6 6 1 Even 13 4 5 8 0 Democratic Third 14 6 6 2 Even 14 1 6 7 1 Democratic Fourth 15 7 4 4 Republican 15 2 6 9 0 Democratic Fifth 17 13 4 0 Republican 17 4 10 5 2 Republican Sixth 16 10 5 1 Republican 16 1 10 6 0 Republican Seventh 11 7 3 1 Republican 11 1 7 3 1 Republican Eighth 11 9 2 0 Republican 11 0 9 2 0 Republican Ninth 28 11 16 1 Democratic 29 3 9 19 1 Democratic Tenth 12 8 4 0 Republican 12 3 6 4 2 Republican Eleventh 12 7 5 0 Republican 12 4 4 6 2 Democratic Federal 12 8 4 0 Republican 12 4 5 5 2 Even D.C. 11 6 3 2 Republican 11 1 5 3 3 Republican Total 178 6 101 64 13 10 Republican 1 Democratic 2 Evenly Split 179 29 85 79 15 7 Republican 5 Democratic 1 Evenly Split *In addition to the vacancies listed here, four judges have announced that they will be leaving active duty in the coming months. Specifically, there will be 1 new Eighth Circuit vacancy (Republican appointee), 1 new Tenth Circuit vacancy (Republican appointee), and 2 new Federal Circuit vacancies (both Democratic appointees). We do not count these future vacancies in the data above because these judges can and sometimes do withdraw their intention to leave active status before their announced departure date passes. IV. Four Years of Unfilled Vacancies; Cries for Help from the States Over the last four years, senate Republicans have either blocked or delayed the confirmation of dozens of nominees, resulting in delayed justice for millions of Americans. The problem grew so acute in many areas that sitting judges many of whom were Republican appointees decried the slow confirmation pace. This section documents some of those pleas for action from current or former judges. It also includes quotes from current senators calling for action on specific nominees who are still being delayed. Quotes are organized by circuit, with one exception: Over many years, however, a persistent problem has developed in the process of filling judicial vacancies. Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes. This has created acute difficulties for some judicial districts. Sitting judges in those 15

districts have been burdened with extraordinary caseloads. 7 Chief Justice John Roberts, 12/31/2010 First Circuit Senator Collins (R-ME) commenting on pending nominee William Kayatta (First Circuit): Bill s impressive background makes him eminently qualified for this seat on the First Circuit.... The First Circuit has the fewest judges of any circuit, and consequently, any vacancy there is felt most acutely. 8 3/14/12 Second Circuit Senator Gillibrand (D-NY) commenting on pending nominee Lorna Schofield (S.D.N.Y): With over thirty years of experience, [Ms. Schofield] will bring a wealth of knowledge and insight to the bench. I commend the President on this outstanding nomination. [She] is a superb candidate for the federal bench and I urge the Committee to favorably report her confirmation to the full Senate for an up or down vote. 9 6/6/12 Senator Schumer (D-NY) commenting on pending nominee Frank Geraci (W.D.N.Y): Judge Geraci s first-rate legal mind, steadfast dedication to the professional administration of justice and deep knowledge of Monroe County and Western New York will make him an incredible judge for the federal bench. Judge Geraci has shown himself to be an outstanding legal professional through his service as a district and federal prosecutor, in addition to his 20 years as a city and county judge in Rochester. His lifelong dedication to the Western District makes him a perfect choice for this position. 10 5/15/12 Third Circuit Retired Judge Timothy K. Lewis, Third Circuit (George H.W. Bush Appointee): Federal judges have reported being forced to handle criminal caseloads more than double what they confronted two years ago. This is limiting the access people have to the judicial system, often resulting in exasperating delays.... Senate inaction is compromising the judiciary s 16

constitutional responsibility to protect and preserve our liberties. Justice delayed is justice denied isn't just an old legal maxim - it should be a rallying call to action. 11 2/17/12. Senior Judge Richard Conaboy, Middle District of the District of Pennsylvania (Carter Appointee) It s frustrating. The cases keep piling up. We have much more civil rights, employment discrimination, and immigration lawsuits It is a crisis here in our district. I work every day. I m not complaining because I ve always had an interest in the workings of the justice system. I want to see that the system works properly. 12 3/23/11 Chief Judge Yvette Kane, Middle District of the District of Pennsylvania (Clinton Appointee): I don't think anyone can look at [the current judicial vacancies] and say this isn t going to have an effect on citizens in the district. 13 5/14/12 Fourth Circuit Senator Mikulski (D-MD) commenting on pending nominee Paul Grimm (D. Md.): I take my 'advise and consent' responsibilities very seriously when I consider nominees for the federal bench. [Judge Grimm] brings the right hard-working values to the bench, but also the necessary experience having sharpened his skills for many years as a litigator and then an indispensable asset to the District Court of Maryland as Magistrate Judge. 14 5/9/12 Fifth Circuit Senior Judge W. Royal Furgeson, Jr., Northern District of Texas (formerly of the Western District of Texas) (Clinton Appointee) I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court. And I felt like I was in night traffic court. The problem, of course, in night traffic court if my client got fined it was going to be a couple of hundred bucks at the most, and the problem that I had with the defendants before me, they were looking at years -- potentially years and years in a federal prison. And I was able to give them about as much attention as I could see those traffic judges giving their -- the defendants before them attention when the fines were about 17

$100 or $200. It was not a good feeling and federal judges all across the border continue to deal with this problem of not having the time it takes to really consider what they re doing, especially in sentencing. And I don t think there s a federal judge in American that will tell you -- that will disagree with this statement. The hardest job we have is to sentence human beings. You know, it s something to judge another human being. And it s a very hard job. And to feel like you re not being able to give it near the attention it deserves creates a desperate sense of failure on your part. 15 2/28/11 Senator Vitter (R-LA) commenting on his refusal to sign the blue slip of pending nominee Shelly Deckert Dick (M.D.La.): Now that it s a few months before a presidential election, however, I m going to let the people speak before supporting any others. 16 5/5/12 Seventh Circuit Senator Kirk (R-IL) commenting on pending nominee Thomas Durkin (N.D. Ill.): Tom Durkin has outstanding legal experience and a strong record of public service. I was pleased to join Sen. Durbin in recommending Mr. Durkin to the White House, and I am confident he will be an excellent judge. 17 6/11/12 Eighth Circuit Senator Thune (R-SD), commenting on judicial nominations in general: Judicial nominations should be treated the same regardless of which party controls the White House or the Senate. I look forward to reviewing the backgrounds and qualifications of all of the judicial nominees sent to the U.S. Senate for consideration.... After reviewing their records, I believe that well-qualified judicial nominees should receive a vote on the floor of the United States Senate. 18 3/4/11 18

Ninth Circuit Chief Judge Alex Kozinski, Ninth Circuit Court of Appeals (Reagan Appointee): A very difficult situation has been seriously exacerbated, and we fear that the public will suffer unless our vacancies are filled very promptly. 19 10/15/11 Deceased Chief Judge John Roll, District of Arizona (George H.W. Bush Appointee) The addition of what sometimes seems to be an inexhaustible number of law enforcement agents and federal prosecutors in Tucson division has now produced a tsunami of federal felony cases far beyond the management capacity of the four active district judges in Tucson division....without the possibility of relief from a declaration of judicial emergency, Tucson division is simply unable to absorb the enormous increase in felony cases being scheduled for trial while remaining compliant with the time limits set by the Speedy Trial Act. 20 11/24/10 Chief Judge Roslyn Silver, District of Arizona We have a crisis, we have vacancies, and we would like to have them filled so that justice can be served. 21 3/4/11 Tenth Circuit Senator Coburn (R-OK) commenting on pending nominees Robert Bacharach (Tenth Circuit) and John Dowdell (N.D. Okla.): I think our two nominees are a great example of how we have chosen to work with the Administration on getting quality candidates for federal positions. I am pleased to be able to support both of these nominations, not because of their legal excellence, necessarily, not because of what other people have said about them in term of their legal capability, but what other people have said about their character and their integrity.... So with that, I ll tell you that I support the nominations and hope that we can move them through the process. 22 5/9/12 Senator Inhofe (R-OK) commenting on pending nominees Robert Bacharach (Tenth Circuit) and John Dowdell (N.D. Okla.): He [Bacharach] is a great guy, ' Inhofe said, quipping that it is kind of rare that the Obama White House and I agree on anything. 23 1/24/12 19

Mr. Dowdell.... has been extensively involved in the community, in addition to being widely recognized for his work on behalf of his clients.... It is my honor to recommend him to this committee. 24 5/9/12 Eleventh Circuit Chief Judge Joel Dubina, Eleventh Circuit Court of Appeals (George H.W. Bush Appoitnee) We presently have a crisis in the federal judiciary in our country. At the time I prepared my remarks for you today, there were 104 vacancies pending in the federal judiciary in the United States.... Justice delayed is justice denied and there are only so many hours in the day where a judge, like any other person, can perform quality work. 25 4/13/11 Senator Rubio (R-FL) commenting on pending nominees Mark Walker (N.D.Fla.) and Brian Davis (M.D.Fla.): One of the pleasant surprises of this job is the quality of individuals who offer themselves for public service, and the quality of individuals who we ve been able to forward to the president, to the White House, today being no exception.... As you can see, their records are pretty impressive, and I encourage [the judiciary committee] to give them full consideration. 26 5/69/12 Senator Isakson (R-GA) commenting generally on the need for votes on pending nominees: [T]he U.S. Constitution says it is the Senate s responsibility to give advice and consent to the president s judicial nominees, and the way to comply with the Constitution is to have an up-or-down vote on these nominees. 27 5/5/11 D.C. Circuit Chief Judge Royce Lamberth, District Court for the District of Columbia (Reagan Appoitnee) There's a war between the legislative branches of government and the judiciary is caught in the middle and we are suffering.... The Republicans are doing exactly what they accused the Democrats of before. They re stalling and there s no good basis to stall if you have no basis against the nominee. 28 4/21/11 20

Appendix: Nominees Pending on the Senate Floor as of 10/22/2012 Nominees* Nominated To Days Pending Nomination Date Reported Out of Committee Judiciary Committee Vote Judicial Emergency? Patty Shwartz 3rd Cir. (NJ) 381 10/5/2011 3/8/2012 10-6 (party line; Kyl &Graham present ) Richard Taranto Fed. Cir. 345 11/10/2011 3/29/2012 En Banc Voice Vote (Lee voting No) William Kayatta 1 st Cir. (ME) 271 1/23/2012 4/19/2012 En Banc Voice Vote (Lee & Sessions voting No) Michael Shea CT 261 2/2/2012 4/26/2012 15-3 (Lee, Cornyn, Coburn voting no) Robert Bacharach 10th Cir. (OK) 251 1/23/2012 6/7/2012 En Banc Voice Vote (Lee voting No) Paul Grimm MD 249 2/16/2012 6/7/2012 En Banc Voice Vote (Lee voting No) Mark E. Walker NDFL 247 2/16/2012 6/7/2012 En Banc Voice Vote (Lee voting No) John Dowdell NDOK 234 2/29/2012 6/7/2012 En Banc Voice Vote (Lee voting No) Brian Davis MDFL 234 2/29/2012 6/21/2012 10-7 (Graham not voting) Yes Terrence G. Berg EDMI 178 4/25/2012 7/12/2012 En Banc Voice Vote (Lee voting No) Yes Jesus G. Bernal CDCA 178 4/25/2012 7/12/2012 En Banc Voice Vote (Lee voting No) Yes Lorna Schofield SDNY 178 4/25/2012 7/12/2012 En Banc Voice Vote (Lee voting No) Frank Geraci WDNY 159 5/14/2012 7/19/2012 En Banc Voice Vote (Lee voting No) Yes Fernando Olguin CDCA 159 5/14/2012 7/19/2012 En Banc Voice Vote (Lee voting No) Yes Matthew Brann MDPA 156 5/17/2012 7/19/2012 En Banc Voice Vote (Lee voting No) Yes Malachy Mannion MDPA 156 5/17/2012 7/19/2012 En Banc Voice Vote (Lee voting No) Yes Thomas Durkin NDIL 152 5/21/2012 8/2/2012 En Banc Voice Vote Yes Jon Tigar NDCA 131 6/11/2012 8/2/2012 En Banc Voice Vote Yes Bill Orrick NDCA 131 6/11/2012 8/2/2012 12-6 (Kyl and Graham voting yes) Yes Total: 19 4 circuit; 15 district 2 Unopposed Voice Votes 12 Voice Vote with Token Opposition (Lee) Due to Unrelated Recess Appointments; 3 Bipartisan with split Rs; 1 Party Line with 2 Rs voting Present; 1 Party Line with 1 R not voting; *Bacharach was blocked due to the Thurmond Rule, not on the merits. Senators Brown (OH), Collins, and Snowe voted yes ; Senators Coburn, Inhofe, and Hatch all voted present ; Murkowski and Graham didn t vote. 10 21

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 http://www.csmonitor.com/commentary/opinion/2011/0526/to-leave-a-liberal-legacy-in-thecourts-obama-must-imitate-the-gop. 3 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 4 Since all of President Clinton s nominees were returned to him in October 1996, this data assumes that these nominees were still pending for comparative purposes. 5 Data is only available back to 1981. 6 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. 7 http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf 8 http://www.senate.gov/fplayers/jw57/urlmp4player.cfm?fn=judiciary031412&st=1125&dur=6332 9 http://www.judiciary.senate.gov/resources/transcripts/upload/060612recordsubmission- Gillibrand.pdf 10 http://www.schumer.senate.gov/record.cfm?id=336776& 11 http://thetimes-tribune.com/opinion/editorials-columns/guest-columnists/fill-judicial-vacancies- 1.1272779#axzz1mvcWpIO1 12 http://www.pennlive.com/midstate/index.ssf/2011/03/senior_judges_ease_a_very_seri.html 13 http://www.law.com/jsp/nlj/pubarticlenlj.jsp?id=1202553268915&slreturn=20121012135629 14 http://www.mikulski.senate.gov/media/pressrelease/5-9-2012-2.cfm 15.http://www.brookings.edu/~/media/events/2011/2/28%20judicial%20logjam/20110228_jif_trans cript_one.pdf 16 http://theadvocate.com/home/3015030-125/vitter-blocking-nominee 17 http://www.kirk.senate.gov/?p=press_release&id=537 18 http://web.archive.org/web/20110304182450/http:/thune.senate.gov/public/index.cfm?fuseactio n=issues.detail&issue_id=a55c4762-f10e-4bb6-822c-0a94cc6bb1da 19 http://articles.latimes.com/2011/oct/15/local/la-me-9th-circuit-vacancies-20111012 22

20 http://www.fpdaz.org/assets/currentnews/cj-judicialemergencyletter-cjkozinski-11-24-10.pdf 21 http://articles.cnn.com/2011-03-03/politics/arizona.judicial.logjam_1_chief-judge-john-roll-federalcourts-federal-judges?_s=pm:politics 22 http://www.senate.gov/fplayers/jw57/commmp4player.cfm?fn=judiciary050912p&st=950 23.http://www.tulsaworld.com/news/article.aspx?subjectid=335&articleid=20120124_14_A5_WASHI N903301 24 http://www.senate.gov/fplayers/jw57/commmp4player.cfm?fn=judiciary050912p&st=950 25 http://www.jaxdailyrecord.com/showstory.php?story_id=533354 26 http://www.senate.gov/fplayers/jw57/commmp4player.cfm?fn=judiciary050912p&st=950 27 http://cnsnews.com/news/article/11-republican-senators-permit-former-planned-parenthooddirector-become-federal-judge 28 http://www.cnn.com/2011/politics/03/03/arizona.judicial.logjam/ 23