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President Obama’s nominees, the lame duck, and the still-climbing judicial vacancy rate

November 14, 2012

The graph above illustrates the central anomaly of President Obama’s first-term efforts to appoint judges to the federal bench: the number of judicial vacancies has continued sloping upward, rather than down, during the course of his first term.

This is dramatically different from the experience of other recent Presidents. Typically, Presidents come into office with a large number of vacancies and gradually reduce them over the course of the first term. President Obama, however, will end his first term with more vacancies than he began it with; that is certain at this point, whatever happens to his 19 nominees pending on the Senate floor.

That is perhaps the best answer to Senate Republicans who, after preventing confirmation votes on even the most uncontroversial Obama judicial nominees, are now arguing that none of these nominees can be confirmed because lame duck judicial confirmations are few and far between.

For one thing, this claim is wrong on its face. Ten years ago today, the Senate confirmed 18 of President Bush’s pending nominees on the Senate floor during the lame duck session.

But more important, this Republican claim obscures the fact that this has been a highly unusual term for judicial confirmations because of the tactics of these same Senators. In the past, the vacancy problem has been addressed well before this late point in the President’s first term. President Bush went into the lame duck session with only 28 vacancies to fill in 2004, and had little reason to push hard for late confirmations. But with more than 80 current vacancies on the federal courts, and unprecedented obstruction of his nominees in the Senate, President Obama – along with the federal judiciary itself -- has every reason to be screaming from the treetops for lame duck confirmations.