American Dysfunction Watch: State of the Judiciary

The Congressional Research Service is a non-partisan arm of the Congress whose purpose is to provide well-researched answers for questions raised by members of the Senate and House. This week it put out a report on another sign of increasing public dysfunction: the mounting number of vacant seats on the Federal judiciary, for both district courts and circuit-court appeals judges. They are vacant mainly because of the increasing difficulty of getting nominations approved by (you guessed it) ... the U.S. Senate.

Refreshingly, this is not strictly a partisan issue! Senate showdowns over judicial nominees have ramped up under both George W. Bush and Barack Obama. This chart shows the percentage of nominees who were finally approved by "roll call" vote in the Senate. The significance here is that back in the Reagan and first George Bush administrations, virtually all nominations were approved by voice vote -- ie, in an uncontested, pro-forma way.


In this chart we see that the current Republican Senate minority, under Obama, has done essentially what the Democratic Senate minority began doing under Bush: forcing nearly all nominations to a contested vote.

But something has changed under Obama, according to the report. He is the only president in the past few decades (most figures go back to Reagan) to have more seats vacant as he began his re-election year than he inherited when he took office.

This chart, which covers appeals-courts judges, looks a little confusing, but its main point is: Clinton and George W. Bush ran for re-election with their appointments-and-confirmations staying ahead of deaths, retirements, creation of new posts, etc. They spent their first few years filling more seats than opened up. Clinton inherited 17 vacancies, and had 12 left when he ran. Bush inherited 26, and had 17 left in his re-election year. But Obama inherited 13 open seats -- and at the start of the year had 16.


The report goes into all the details. Obama has been slower than Bush to put nominees forward, and the Senate has been even slower to consider those he does nominate. Charts here, here, and here: a substantial number of "judicial emergencies," without district-court judges to hear cases or circuit-court judges to hear appeals, because of the deliberate bogging-down of the whole process. In some cases the nominations are being held up because of a single Senator's objection.

I could supply the larger moral here, but .... nah. Check out the report, for details like these:
• District court vacancies have grown in number over the course of the Obama presidency, from 42 judgeships vacant when President Obama took office to 59 at present...
• During the Obama presidency thus far, fewer circuit court nominees have been confirmed by the Senate than were confirmed during the first terms of any of the four preceding Presidents (Reagan through G.W. Bush).
• Likewise, fewer Obama district court nominees have been confirmed by the Senate than were confirmed during the first terms of the four preceding Presidents.
• President Obama is the only one of the three most recent Presidents to have begun his fourth year in office with more circuit and district court judgeships vacant than when he took office.
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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.

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