Earlier this week, the White House announced that President Barack Obama would name nominees to fill three vacant seats on the D.C. Circuit Court, touching off a new battle between the White House and Republicans over filibusters and presidential privileges. Despite the fact that appointing judges is one of the powers given to every president by the Constitution, some Republicans reacted as though Obama were doing something horrible by fulfilling this obligation. (You'd almost think they didn't accept the legitimacy of his presidency.) In any case, this argument is likely to heat up over the next few weeks, so we might benefit from some context as charges and counter-charges start flying.
To begin with, some background. The nominations at issue here are those to the circuit courts—also known as the courts of appeals—and to the district courts. There are 13 circuit courts with a total of 179 seats, and 89 district courts with a total of 677 seats. The circuit court seats are the ones that get the most attention, because they are more powerful, and Supreme Court nominees usually come from circuit courts (of the nine justices on the current Supreme Court, only Elena Kagan didn't come from a circuit-court judgeship). Right now, there are 15 vacancies on the circuit courts and 64 vacancies on the district courts.
While the White House blames Republican obstruction for the large number of vacancies, that's only part of the story, the other part being that the White House has been slow to name nominees for many of these seats. For instance, during his first term, Obama took an average of 406 days to fill each district-court vacancy, compared to 370 days for Bill Clinton and only 276 days for George W. Bush.
Not only that, Obama's nominees have been slightly older on average than those of his two predecessors (meaning they'll serve for less time in the future). From the first year of his presidency, liberals have also complained that his nominees are too centrist, in contrast with prior presidents (particularly Ronald Reagan) who moved aggressively to install as many ideologues on the bench as possible. Whether this is a function of Obama's timidity or a realistic expectation of what will produce implacable Republican opposition is debatable, but as Dahlia Lithwick has written, "a liberal jurist can be disqualified from a judicial confirmation hearing for expressing a single progressive idea in a law review article, whereas when it comes to conservative judicial nominees extreme and full-throated ideological exhortations are usually an added bonus."
Yet despite very real Republican obstruction of many nominees, when it comes to getting his nominees confirmed, Obama is not doing too much worse overall than his predecessors. According to the Alliance for Justice, at this point in his term, Clinton had seen 86 percent of his district-court nominees confirmed and 74 percent of his circuit-court nominees confirmed. Obama's numbers are a nearly identical 85 percent and 77 percent, respectively. George W. Bush did much better on his district-court nominees, getting 98 percent confirmed by May of his fifth year in office, but slightly worse on his circuit-court nominees, at 69 percent.
The last time we had an argument over the filibustering of judicial nominees was in 2005, when Bush nominated some genuine extremists, particularly Janice Rogers Brown, to circuit courts, and Democrats mounted filibusters in response. At the time, Republicans (who controlled the Senate) were threatening to do away with the filibuster for all judicial nominations, and Democrats were defending it as the heart of democracy. Now those roles are reversed—though it should be noted that Democrats eventually gave in and Rogers now sits on the D.C. Circuit Court, and most of Bush's other controversial nominees got seated as well. So Republicans aren't wrong when they claim that over time Senate Democrats have been nearly as hypocritical on the judicial filibuster question as they have (and Republicans have a martyr to Democratic villainy, Miguel Estrada, whose failed nomination they'll never fail to bring up). Nevertheless, Republicans have certainly looked harder for ways to make appointing judges difficult for Democratic presidents; if this is your sort of thing, you can read Kevin Drum on the various changes the parties have made to the "blue slip" rule over the years, which concerns whether one, both, or no home-state senators have to approve every district court nominee. The short version is that when Republicans control the Senate they make it hard for Democratic presidents, but when Democrats control the Senate they don't make things quite as hard for Republican presidents.
While we won't know until 2017 exactly how much of a stamp the Obama presidency will leave on the judiciary, at this point he's trailing some of his predecessors. None in recent years matched Reagan, who came into office after the number of courts was expanded to handle a growing caseload. Reagan appointed 370 district- and circuit-court judges, not to mention three Supreme Court justices. Bill Clinton was not far behind, but so far Obama has a ways to go.11The figures for Obama in this graph include nominees he has named, but who have not yet been confirmed. Data for prior presidents can be found here.
Liberals may not be happy about the rate at which Obama has filled vacancies, but they ought to give him credit for significantly increasing diversity on the federal bench. Prior presidents, particularly Republican ones, appointed men almost exclusively; for instance, though Ronald Reagan appointed the first woman to sit on the Supreme Court, she didn't have a lot of company, as 92 percent of the judges Reagan selected were male. Even in the Clinton years, male appointees outnumbered females by more than 2 to 1. Obama, on the other hand, has gotten in the general vicinity of an even split; 57 percent of his appointees are men, and 43 percent are women.
Obama's record on racial diversity may be even better. Non-Hispanic whites are currently 64 percent of the population, but in prior presidencies, they made up a higher proportion of judicial nominees (especially that of Reagan, whose appointees were 94 percent white). But Obama's nominees22The diversity figures for Obama in this and the prior section include confirmed judges, those awaiting confirmation, and those who were nominated but eventually withdrew. The data are from the Alliance for Justice and can be found here. have been only 62 percent white. Blacks made up 19 percent of those he has put up for federal judgeships, Hispanics 12 percent, and Asian Americans 7 percent.
Few powers the president has are as lasting as the power to reshape the federal courts. By the end of two terms, a president who has filled all the judicial vacancies he could and sought out ideologically friendly, young jurists can continue to influence the nation's laws for decades after he leaves office. Few would argue that Barack Obama was particularly focused on that legacy in his first term. But he still has three and a half years to go, so it isn't too late.