'You Should Know': Latest Nullification News, of the Judiciary


This morning, early!!, I was on the MSNBC show Up with Chris Hayes,* discussing China, politics, and other matters. (With Catherine Rampell, David Frum, Ann Lee, and Alexis Goldstein.) China clips here and here, with Hayes's intro here.

And the end of the show, Hayes has a "you should know" segment about events for the week ahead. My nominee was a report from the Alliance for Justice, for release tomorrow, on how the filibuster-everything modern Senate has affected the Obama administration's ability to staff the federal judiciary. The press release about the report is here, with a link to this PDF of the findings as a whole. By all means give it a read.


I am storing up for an omnibus "more about the filibuster, false equivalence, and nullification than you can imagine -- plus some solutions!" post someday soon now. For the time being, and in explanation of what I was talking about on the show, here are the summary points from the report, with emphasis in original. See if this reminds you of any other patterns you've seen in recent news involving the Senate:

  • "On May, 7, 2012, the Senate will finally finish dealing with the nominees left pending on the Senate floor at the end of last year.  The Senate has yet to confirm a single nominee submitted by the president in 2012.
  • "During President Obama's first term, current vacancies on the federal bench have risen by 43%. This trend stands in stark contrast to President Clinton and President Bush's first three years, when vacancies declined by 57% and 60%, respectively.
  • "Nearly one out of ten federal judgeships remains vacant.  Judicial vacancies are nearly double what they were at this point in President George W. Bush's first term.
  • "As of May 7, the number of seats considered to be "judicial emergencies" will have risen by 70%, from 20 at the beginning of President Obama's term to 34.
  • "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..."

There's lots more. The second point on the list above deserves special attention. For all their differences, George W. Bush and Bill Clinton were able, during their first three years in office, to place many more judges on the federal bench than left or retired. Thus, the vacancy rate went down. Obama has been able to place many fewer. Thus vacancies have gone up. Also, as the report makes clear, both the Republican minority in the Senate and the Obama Administration bear responsibility for this problem. The Republicans have been more willing to filibuster nominees than previous Senate minorities have -- and the Obama administration has been slower than George W. Bush or Clinton in getting nominees submitted to begin with or fighting the filibuster head-on.


* Even allowing for some of the advantages Hayes has with his relatively new show -- it's two full hours of live TV each Saturday and Sunday, the early-morning "hey, maybe no one's watching!" factor may loosen up discussion -- over the months it's been a more sophisticated discussion of political/policy issues than you're used to finding on TV.

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James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

Fallows welcomes and frequently quotes from reader mail sent via the "Email" button below. Unless you specify otherwise, we consider any incoming mail available for possible quotation -- but not with the sender's real name unless you explicitly state that it may be used. If you are wondering why Fallows does not use a "Comments" field below his posts, please see previous explanations here and here.
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