Federal Courts, Empty Benches: The Wednesday Vacancy Count 9/19/2012
September 19, 2012
- For a District by District break down, see: Federal Court Vacancy Warning System
The current vacancy warning level for the U.S. District courts is set at Blue. There was one new confirmation this past week. That leaves the final tally at 75 vacancies or approximately 8.6% of the total Article III posts currently unfilled. The vacancy information for the various court levels is as follows:
| Key: | |
| (Percentage of seats vacant.) | |
| 0% | 1%-9% |
| 10%-24% | 25%-40% |
| More than 40% | |
| Supreme Court | 0% or no vacancies |
| Appeals Courts | 7.8% or 14 vacancies |
| District Courts | 9% or 61 vacancies |
There are currently 9 Supreme Court posts, 179 appellate court posts and 680 district court posts for a total of 868 Article III judges. This count includes four temporary posts, one each in the Northern District of Alabama, District of Arizona, Southern District of Florida and the Central District of California. This also includes a shared post between the two Missouri districts and counts it as two posts with separate vacancies.
Weekly map
The new weekly map feature will be updated every week and posted here and on the vacancy warning level analysis page.
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News
There were no new confirmations vacancies or appointments this week.
A term in review
Congressional constraint
As Barack Obama approaches the end of his first term in the White House, his impact on the Judiciary becomes increasingly important. Pending the election in November, Obama's opportunities to appoint federal judges may be at an end. Further, entering a potential lame duck session, Congress is unlikely to confirm many more positions, thus leaving the final tally at 75 vacancies. And while the total vacancies at the appellate level has remained fairly consistent, the near doubling of vacant district posts is disconcerting. Numerous pundits have pointed to the increased vacancies as a unique problem with the Obama administration and the current congress and accuse the players of failing to meet the needs of the court system. These accusations usually take the form of partisan bickering with one side of the aisle blaming the other for obstructive tactics. Republicans have pointed at Obama's inability to either appoint candidates in a timely fashion or appoint candidates that are sufficiently moderate to be to their liking. At the same time, Democrats point to the Republicans' resistance to confirm even the most moderate candidates and their general opposition to all of Obama's nominees. In addition, there has been some in-fighting within the Democratic Party concerning senator approval of judicial nominees from their home state.
Essentially, two congressional mechanisms are operating to block confirmations, assuming that President Obama has appointed a candidate.
Blue Slips
The first hurdle that a candidate must overcome is obtaining a hearing with the Senate Judiciary Committee. However, prior to scheduling a hearing, the Judiciary Committee sends a "blue slip" to the senators from that state. The slip requests that the senators take a position on the appointee with a yes or no question. While the impact of answering the question negatively, especially for a minority party senator, is not necessarily strong, senators can block the hearing and consequentially the confirmation of a judge by withholding the slip.[1] If this held true, consequently we would expect states with one or more Republican senators to more frequently block judicial nominations in their state. We will be developing data to investigate this phenomenon in the coming weeks.
Filibuster
The second mechanism in play is the filibuster. Unlike the U.S. House of Representatives, the U.S. Senate does not have a concrete rule to end debate on a particular issue. This has resulted in the congressional tactic known as the filibuster, where a senator or group of senators would continue talking on a subject in order to forestall a vote on that bill indefinitely. Historically, this has resulted in endurance battles between individuals attempting to block legislation and simple majorities hoping to overcome them. In order to overcome the filibuster, the Senate established a rule which requires a vote of 60 senators to invoke cloture. The modern Senate has forgone the long drawn out battles and instead places holds on legislation unless a cloture vote can achieve the requisite 60 yeas. Interestingly enough, for the first 8 months of the Obama administration, the Democrats held a commanding majority in the Senate and could have overcome cloture for a number of measures.
A term in review
A few weeks ago, Judgepedia posted data collected by our employees using the Official Senate Judiciary Website and the Official Website of the U.S. Courts that highlight the weekly changes in vacancy count throughout Obama's term in office. This weekend we would like to share some graphs that further highlight that data.
Weekly vacancy changes
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Weekly net vacancy changes
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Weekly vacancy percentage by court level
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Weekly total vacancy percentage
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Analysis
All of these graphs provide an interesting answer as to when things went wrong and when things worked right. Ironically, the 111th Congress, during which the Democrat's held a supermajority of 60 votes for the first part of the session, also saw the largest increases in judicial vacancies. The total lack of confirmations for the first 8 months of Obama's administration indicates both a delay in forwarding nominations and a delay in moving those nominations through the process. These were the same months in which the Democrats held a super-majority. However, what is most telling is the curve presented in Graph 4. The total number of vacancies continue to climb throughout the first congress with which Obama contended while dropping only during the second congress. Interestingly, the Republicans made strong gains during the midterm elections in the House but not significant gains in the Senate. While the democrats retained the Senate, they could not achieve a filibuster blocking vote. None-the-less the vacancies began dropping during this latter half.
Making the argument that an increase in Republican support resulted in more confirmations for a Democratic president would be illogical. Therefor, there must be additional factors at play here, more than mere partisan bickering.
This leads to the following questions:
- Why were Republican Senators less likely to block judicial appointments during the 112th Congress despite gains in the midterm elections?
- Is this pattern unique for the Obama administration or has it occurred under past presidential terms?
- Is Obama's first term in office truly unique and if so, how?
As the month's progress and news on judicial appointments becomes rarer and rarer, the staff at Judgepedia hope to dig into this mystery by continuing to provide interesting data.
See also
Footnotes
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