Legal Commentary

Mazzone on Judicial Confirmations And Vacancies

By Orin Kerr

Over at Balkinization, Jason Mazzone has an insightful post compared judicial confirmations and vacancies so far in the Obama era to those at the equivalent point in George W. Bush?s first term. The results are pretty interesting. At the Supreme Court and appellate court level, here are the numbers:

Supreme Court Appointments: 2 for Obama, 0 for Bush.
Circuit Court Appointments: 10 for Obama, 13 for Bush.

Further, there are 20 circuit court vacancies now, compared to 28 at this point in Bush?s first term. Given the value of Supreme Court appointments relative to Circuit Court appointments ? and the fact that Supreme Court confirmations take over the nominations process when they occur, slowing everything else down ? it seems that Obama is probably ahead of Bush at the appellate court level.

As Mazzone notes, the real differences are at the District Court level. Bush had 64 District Court appointments at this stage, while Obama has had only 30. Further, there are a lot more district court vacancies now than then: There are 84 vacancies in the district courts today but only 32 district court vacancies at this time in Bush?s first term. At the same time, those figures are complicated by the slow pace of the Obama Administration in making nominations. According to Mazzone, there are 29 pending nominations for those 84 vacancies, with the remainder not having a person yet nominated. Further, about half of those 29 pending vacancies have been pending only since May. In contrast, Bush was better about submitting his nominations for District Court spots: At this point in his Presidency, Bush had 30 pending nominations for the 32 district court vacancies that existed. 

Mazzone concludes:

The image accompanying Dahlia Lithwick?s column is of Ninth Circuit nominee Goodwin Liu, with the words ?Goodwin Liu still awaits confirmation.? (The Los Angeles Times also discusses Professor Liu?s nomination.) That misses the real problem. A more telling image would be of an empty district court seat ? for which nobody has even been nominated.

Interesting.

Full post as published by The Volokh Conspiracy on September 15, 2010 (boomark / email).