THE STATE OF THE JUDICIARY
Judicial Selection During the 113th Congress
June 10, 2014
A report by
Alliance for Justice
11 Dupont Circle NW, Second Floor
Washington, DC 20036 | www.afj.org
About Alliance for Justice
Alliance for Justice is a national association of over 100 organizations, representing a
broad array of groups committed to progressive values and the creation of an equitable,
just, and free society. AFJ works to ensure that the federal judiciary advances core
constitutional values, preserves human rights and unfettered access to the courts, and
adheres to the even-handed administration of justice for all Americans. It is the leading
expert on the legal framework for nonprofit advocacy efforts, providing definitive
information, resources, and technical assistance that encourages organizations and their
funding partners to fully exercise their right to be active participants in the democratic
process.
For more information on this report, contact AFJ’s Washington headquarters.
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without the express written consent of Alliance for Justice.
© 2014 Alliance for Justice
Contents
Contents……………………………………………………………………… 3
I. Executive Summary………………………………………………………… 4
II. President Obama’s Impact on the Federal Courts after More than Five Years in
Office………………………………………………………………………….7
A. Senate Rules Reform……………………………………………… 7
B. Confirmations……………………………………………………...9
C. Vacancies…………………………………………………………. 10
D. Composition of the Courts……………………………………….. 11
E. Judicial Emergencies………………………………………………. 12
III. President Obama’s Judicial Nominees……………………………………... 13
A. Nominees’ Demographic and Professional Backgrounds…………... 13
Professional Diversity………………………………………....13
Racial, Gender, Sexual Orientation, and Disability Diversity….... 15
Age…………………………………………………………. 16
B. Nominations……………………………………………………… 18
C. Early-Stage Obstruction of Judicial Nominees…………………….. 19
IV. Conclusion………………………………………………………………. 21
Appendix I: Nominees Pending on the Senate Floor as of 6/10/2014…………. 22
Appendix II: Vacancies Without Nominees Maps as of 6/4/2014…………….. 23
Notes………………………………………………………………………… 26
The State of the Judiciary: Judicial Selection During the 113th Congress
I. Executive Summary
In our last State of the Judiciary report in October 2013, we reported an
unprecedented judicial vacancy crisis fueled by Republican obstruction at all stages of
the confirmation process. There was also a question of whether the obstruction
would go unchecked, leaving judicial nominees mired in Senate gridlock and further
limiting the federal courts’ ability to provide justice. The subsequent six months have
provided a clear and hopeful answer: Senate Democrats, led by Majority Leader
Harry Reid, D-Nev., have responded boldly to mindless obstruction, making judicial
confirmations a top priority on the Senate floor. While much work remains to be
done, the Senate has already confirmed 47 judges this year (compared to 22 in the
first five months of 2013), and the judiciary now has the lowest total of current
vacancies in five years.
Over the last five years, President Obama has consistently faced more than 100 total
judicial vacancies and 30 “judicial emergencies”—a designation for courts that do not
have enough to judges to handle their existing caseload. When we issued our October
report, there were 111 total vacancies and 37 judicial emergencies, both high numbers
that reflect a drastically understaffed judiciary. Since the president increased the pace
of nominations in his second term, these persistent vacancies were born of
obstruction and delay tactics by Republican Senators. In recent months, however,
Senate Democrats have made clear that they will protect democratic process in the
Senate, and that obstruction and gridlock cannot be the “new norm” for judicial
nominees.
First, last November the Senate Republicans blatantly abused the filibuster by
blocking all of President Obama’s three D.C. Circuit nominees from receiving an upor-down confirmation vote. This obstruction was not prompted by a substantive
objection to any of the exceptionally well-qualified nominees, but was instead a
blanket refusal to let the President fill vacancies on the vitally important D.C. Circuit.
Senate Democrats responded to this partisan obstruction by changing the filibuster
rule for district and circuit court nominees, eliminating the super-majority 60 vote
requirement to invoke cloture and proceed to a confirmation vote. As a result, three
D.C. Circuit nominees were confirmed, thus giving the court its full complement of
11 active judges. Since then, rules reform has been an essential part of other circuit
court confirmations. Judges Michelle Friedland and John Owens of the Ninth Circuit,
and Judge David Barron of the First Circuit—all well-credentialed nominees who had
broad bipartisan support in the legal community—were each confirmed with fewer
than 60 votes.
But while rules reform enabled President Obama to fill a number of important circuit
court vacancies, it could not alone solve the vacancy crisis writ large. Unable to
sustain a filibuster, Republicans shifted to new forms of obstruction on the Senate
floor. In 2014, Republicans have refused to allow confirmation via unanimous
consent or agreed-upon votes—the traditional means of confirming judicial
nominees, particularly for non-controversial district court judges—and have insisted
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The State of the Judiciary: Judicial Selection During the 113th Congress
that each nomination consume as much floor time as possible.1 This tactic has been
especially problematic for confirming circuit court judges, because Senate
Republicans can demand—and have demanded—30 hours of post-cloture debate
time for each circuit nomination. These demands persist despite Republicans’ almost
complete failure to use the post-cloture time to actually debate the merits of the
nominee in question. Consequently, by the end of April 2014 a substantial backlog of
31 judicial nominees—including six circuit court nominees—had accumulated on the
Senate’s floor calendar (this time last year, only seven judicial nominees were waiting
for a confirmation vote). Many of these nominees would have been confirmed last
year but for long delays generated by Republican Senators; at the end of 2013,
Republicans demanded that 55 judicial nominees be sent back to the White House,
including nine who had been pending on the Senate floor.
When the Senate returned from April recess, Majority Leader Reid, with the support
of the Democratic caucus, responded to these costly delays by filing cloture petitions
and forcing votes on successive groups of nominees—or, as Alexander Bolton of The
Hill described it, “Reid hit the gas on judicial nominees.”2 During the week of April
28, for example, the Senate held eight cloture votes and confirmed eight judges. The
following week, the Senate confirmed another four judges after four more cloture
votes. All told, the Senate confirmed 22 judges (including five circuit judges) during
the month-long work period, dramatically reducing the number of nominees pending
on the floor from 31 to 13,3 the total number of current vacancies from 87 to 67, and
the number of judicial emergencies from 36 to 25. These confirmations also
influenced the overall composition of the federal courts; Democratic-appointed
judges hold a 6% advantage in the federal courts, and nine circuit courts of appeals
have a majority of Democratic-appointed judges.
Another area of improvement has been the professional diversity of President
Obama’s nominees. In conjunction with a February event keynoted by Senator
Elizabeth Warren, Alliance for Justice released a report on the professional
backgrounds of judicial nominees that sparked a national conversation.4 A number of
major news outlets, including the New York Times, responded with articles addressing
the imperative that federal judges not only look like the American people, but also
reflect the full breadth of the legal profession.5
Since the report’s release, lawyers with experience working in the public interest have
been nominated at a substantially higher rate than during President Obama’s first five
years in office. For example, the president’s very first judicial nominees of 2014—
four lawyers each named to a different district court vacancy—have spent their legal
careers in courtrooms fighting for individual rights. Richard Boulware, a nominee to
the District of Nevada, is currently the Federal Public Defender in Nevada, and
previously served as trial attorney for the Federal Defenders of New York. Salvador
Mendoza, a state court judge nominated to the Eastern District of Washington, was
previously a solo practitioner who often represented indigent criminal defendants.
And both Stephen Bough and Staci Yandle, nominees to the Western District of
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The State of the Judiciary: Judicial Selection During the 113th Congress
Missouri and the Southern District of Illinois respectively, have spent their entire
careers representing individual plaintiffs in civil litigation.
***
Below, this report provides detailed statistical analysis of federal judicial vacancies,
nominations, and confirmations throughout the Obama administration. In brief, the
report documents that:

During President Obama’s time in office, current vacancies have risen by
13%. This is in contrast to the same point in President Clinton’s and
President Bush’s second terms, when vacancies had declined by 32% and 43%,
respectively. [See infra, page 10]

7.2% of all federal judgeships are vacant. This is a significant reduction from
one month ago, in April 2014, when 10% of federal judgeships were vacant.
As of June 1, there are 19 more judicial vacancies than at the same point in
President George W. Bush’s second term, but eight fewer than in President
Clinton’s presidency. [See infra, page 10]

87% of President Obama’s nominees have been confirmed; comparatively,
President George W. Bush and President Clinton had confirmation rates of
90% and 81% respectively this far into their second terms. [See infra, page
10]

Overall, states with at least one Republican Senator account for 87% of all
current vacancies without nominees, and states with two Republican Senators
account for 55% of all current vacancies without nominees.

Texas and Pennsylvania together account for 50% (19 of 38) of all current
vacancies without nominees.

The number of seats considered to be “judicial emergencies” has risen by
25%, from 20 at the beginning of President Obama’s term to 25. [See infra,
page 12]

President Obama’s appointments have given Democratic-appointed judges
an overall majority on the federal courts. Since the end of the Bush
Administration, the percentage of Republican-appointed circuit court judges
dropped from 61.3% to 46.5%, and the percentage of Republican-appointed
district court judges dropped from 58.6% to 47.1%. [See infra, page 11]

Nine circuit courts of appeals have a majority of Democratic-appointed
judges, and four circuit courts have a majority of Republican-appointed
judges. When President Obama took office, 10 circuit courts were controlled
by Republicans, one was controlled by Democratic appointees, and two were
evenly divided. [See infra, page 12]
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The State of the Judiciary: Judicial Selection During the 113th Congress

The president has appointed the highest percentage of women (42%) and
people of color (37%) in history. He has also appointed 8 openly gay federal
judges, while only one had been confirmed prior to his administration.
[See infra, page 16]

There is a downward trend in the age of President Obama’s circuit court
appointees. So far in 2014, the Senate has confirmed six circuit court judges
who were 50 years or younger at nomination, including three judges who
were 42 or younger. [See infra, page 16]
Looking ahead, another sensible and worthwhile reform in Senate rules would be a
“use it or lose it” requirement on post-cloture debate time. When Senate Republicans
demand to use the maximum amount of debate time before allowing a confirmation
vote, they should be required to actually debate or discuss relevant matters—not
simply trigger delay for the sake of delay. This modest change would avoid time
wasting without diminishing senators’ ability to address the merits of individual
nominees.6
In addition, with the increase in confirmations, attention must return to obstruction
used to either block nominees in committee, or delay nominations in the first place.
No nominee who lacks the support of both home-state senators has successfully
moved through committee, and it has been White House practice to avoid
nominating anyone who will not be supported by their senators. This has allowed
Republican senators to keep judicial vacancies unfilled for long periods of time—in
some cases over 1,000 days—without public accountability. In light of this
problematic early-stage obstruction, the White House, Senate Judiciary Committee,
and the full Senate should reconsider the various senatorial courtesies that have been
too often exploited as opportunities for obstruction. A functioning, fully-staffed
judiciary is a bedrock of American democracy, and a minority in the Senate should
not be able to keep the federal bench from operating at full capacity.
II. President Obama’s Impact on the Federal
Courts after More than Five Years in Office
A. Senate Rules Reform
Last November marked a new era for judicial confirmations when the Senate
changed its rules so that an obstructionist minority cannot defeat critical executive
branch and judicial nominees. The rules change was ultimately compelled by Senate
Republicans’ repeated abuse of the filibuster as an attempt at nullification—that is, to
restrict the president’s influence and ability to govern by blocking his nominees—
rather than as part of “advice and consent” on the qualifications of any particular
nominee.
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The State of the Judiciary: Judicial Selection During the 113th Congress
The first showdown over the Republicans’ nullification strategy came in July 2013. In
an attempt to effectively shut down certain federal agencies they do not like, Senate
Republicans wielded the filibuster to block seven key executive branch nominees,
including the first permanent director of the Consumer Financial Protection Bureau,
the Secretary of Labor, and several National Labor Relations Board members.7 But
after Majority Leader Reid threatened to eliminate the super-majority requirement to
end debate on executive nominations, and the public made clear that such partisan
gridlock was unpopular, the Republicans backed down. Senate Democrats therefore
left the filibuster on nominees unchanged, and, in exchange, Senate Republicans
agreed to allow confirmation votes on executive nominees for all seven positions,
including two new nominees to the NLRB (who the president agreed to nominate in
place of two recess appointments).
In the fall, however, Senate Republicans expanded their strategy to the judiciary, and
erected a partisan blockade between the White House and the D.C. Circuit Court of
Appeals. Republicans opposed all three of President Obama’s mainstream
nominees—Nina Pillard, Patricia Millett, and Judge Robert Wilkins—arguing that the
court’s caseload did not justify confirming new judges and making outlandish claims
of “court packing.” Senator Chuck Grassley, R-Iowa, even introduced legislation to
remove all three seats from the D.C. Circuit by eliminating one entirely and moving
two to other circuits. Of course, the Republicans were not actually concerned with
caseload—the Senate confirmed three George W. Bush nominees to the very same
seats when the court’s caseload was about the same or even lower—and were instead
trying keep the president’s nominees, regardless of their individual merit, off the
powerful D.C. Circuit.8 In quick succession—between October 31 and November
18—Senate Republicans used the filibuster to block confirmation votes for all three
D.C. Circuit nominees, as well as for a nominee to the Federal Housing Finance
Agency, Congressman Mel Watt.
Faced with this political effort to hamstring the D.C. Circuit and undercut the
president’s constitutional authority to fill judicial and executive vacancies, Senate
Democrats had no choice but to change the rules to restore functioning democracy.
On November 21, the Senate voted 52 to 48 to eliminate the super-majority 60-vote
requirement to end debate on all nominations except for those to the Supreme Court.
Thus, for all executive branch and lower court judicial nominees, only a simple
majority of those senators present and voting is needed to end a filibuster (or “invoke
cloture”). By January 13, 2014, the Senate had confirmed each of the D.C. Circuit
nominees via simple majority, leaving the court fully staffed for the first time since
2005.9
After the D.C. Circuit confirmations, rules reform also enabled the Senate to confirm
judges to other circuit courts of appeals. Michelle Friedland and former federal
prosecutor John Owens were each confirmed to the Ninth Circuit with fewer than 60
votes. Likewise, David Barron, a tenured law professor and former DOJ attorney,
was confirmed with just 53 votes. In each case, the failure to garner 60 votes came
despite broad support from across the ideological spectrum. For example, Republican
8
The State of the Judiciary: Judicial Selection During the 113th Congress
partners of Friedland’s firm—all of whom had clerked for either Justice Antonin
Scalia, Justice Anthony Kennedy, or then-Justice William Rehnquist, wrote that,
“Michelle Friedland has the talent, fairness, and integrity to be an outstanding Circuit
Judge on the Ninth Circuit.”10 And in a joint op-ed supporting David Barron, law
professors Charles Fried and Larry Tribe—who acknowledged that “the two of us
frequently approach legal questions from different perspectives, and just as often
disagree about the best answers to those questions”—wrote that “[n]o one can
reasonably question Barron’s intelligence, the high quality of his scholarship, his
judicial temperament, his deep respect for the rule of law, or his personal integrity and
devotion to public service.”11 Yet despite these broad endorsements, these
nominations likely would have succumbed to blind Republican obstruction but for
the change in rules that allowed up-or-down confirmation votes.
B. Confirmations
Despite continued Republican obstruction on the Senate floor, the first five months
of 2014 have brought a dramatic increase in the number and pace of judicial
confirmations. President Obama had 19 judicial confirmations by the end of
March—the best first quarter of any year during his administration. And after the
Senate confirmed John Owens to the Ninth Circuit in April 2014, President Obama’s
total number of confirmations surpassed those of President George W. Bush at the
same point in his presidency.
Still, when the Senate adjourned for April recess, a substantial backlog of judicial
nominees remained pending on the floor. Senate Republicans continued to obstruct
and delay confirmations by demanding cloture votes and the full allotment of postcloture debate time—30 hours for circuit court judges and two hours (though
Democrats can yield back one hour) for district court judges—for each nominee.
Even before rules reform, Senator Reid filed cloture on 20 Obama district court
nominees; to compare, Presidents Bush and Clinton each had cloture filed on only
one of their district court nominees.12 This practice has escalated since rules reform,
and in 2014 Senate Republicans have forced a cloture vote on all judicial nominees—
including noncontroversial judges later confirmed unanimously. In the first five
months of 2014, Senate Republicans forced cloture votes on eighteen district court
nominees and three circuit court nominees who were then confirmed without a single
“nay” vote.13
When the Senate returned for its May work period, Senator Reid and the Senate
Democrats responded to this obstruction by upping the pace of judicial
confirmations. In less than one month—between April 28 and the Memorial Day
recess on May 23—the Senate confirmed 22 judges (including 5 circuit court judges),
reducing the number of judicial nominees on the floor from 31 to 13.
These recent confirmations have pushed President Obama well ahead of President
Bush and brought him about equal to President Clinton for total confirmations this
far into their second term:
9
The State of the Judiciary: Judicial Selection During the 113th Congress
This flurry of confirmations has also raised President Obama’s confirmation rate.
When we issued our last report in October, Obama’s confirmation rate lagged well
behind Bush II—only 76% of Obama’s nominees had been confirmed compared to
90% for Bush. Now President Obama’s confirmation rate is only three percentage
points behind his predecessor, and his confirmation rate for circuit court nominees is
ten points higher—83% for Obama compared to 73% for Bush.
C. Vacancies
As noted above, the recent spate of judicial confirmations broke a longstanding trend
in the number of current vacancies. For the last five years, the number of current
judicial vacancies has hovered around 90, and there were 91 vacancies at the time of
our last report in October. With 22 confirmations in the most recent work period,
and six more in the last two weeks, there are now 62 current vacancies—the lowest
total in five years. In particular, the number of circuit court vacancies has dropped
from 15 to 10 since April 28. While this rapid reduction represents significant
progress, there remain more vacancies now than when President Obama took office
in January 2009. Conversely, at this same point in their presidencies, Presidents
Clinton and George W. Bush had both reduced the number of current judicial
vacancies—Clinton by 32% (from 107 to 73) and Bush by 43% (from 80 to 46).
President Obama has also had 34 more vacancies to fill than did Bush at this point
(323 to 289).
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The State of the Judiciary: Judicial Selection During the 113th Congress
D. Composition of the Courts
With the major push by Senate Democrats to confirm the long list of pending judicial
nominees, the federal judiciary has shifted from a slight majority in favor of
Republican-appointed judges to a full 6% advantage for Democratic appointees (53%
to 47%).
Over the course of President Obama’s administration, the circuit courts of appeals
have gradually moved from 38.7% to 53.5% Democratic, while district courts have
shifted from 41.4% to 52.9% Democratic. There are currently 380 active Republicanappointed federal judges, and 428 Democratic-appointed judges. At this same point
in President George W. Bush’s presidency, Republican-appointed judges held a 453
(55.3%) to 366 (44.7%) majority, and 59.4% of federal judges were Republican
appointees by the end of 2008.
Nominating-Party Composition of the Courts: the Past Two Presidencies
Party
As of 6/4/14
DemocraticAppointed
RepublicanAppointed
End of Bush
Administration
DemocraticAppointed
RepublicanAppointed
Supreme
Court
Courts of
Appeals
Percentage
Courts of
Appeals
District
Courts
Percentage
of District
Courts
Total
Judges
Percentage
of Total
Judges
4
91
53.5%
335
53.1%
430
53.1%
5
79
46.5%
296
46.9%
380
46.9%
2
64
38.7%
261
41.4%
327
40.6%
7
101
61.3%
370
58.6%
478
59.4%
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The State of the Judiciary: Judicial Selection During the 113th Congress
During President Obama’s tenure, the Second and Third Circuits have switched from
evenly divided to majority Democratic-appointed; the First, Fourth, Tenth, Eleventh,
D.C., and Federal Circuits have switched from majority Republican-appointed to
majority Democratic-appointed. The Fifth, Sixth, Seventh, and Eighth Circuits have
retained their Republican-appointed majorities, and the Ninth Circuit has retained its
Democratic-appointed majority.
This year’s confirmations of eight circuit judges have propelled a further shift in the
number of circuit courts with a majority of Democratic-appointed judges. Since our
October report, two more circuit courts—the Tenth and D.C. Circuits—have
transitioned to a Democratic majority. Now there are nine circuits controlled by
Democrats and four controlled by Republicans. When President Obama took office,
Republican appointees held a majority in 10 circuit courts, Democratic appointees
held a majority in one, and two were equally divided.
Circuit Courts of Appeals Breakdown By Appointing President’s Party
Circuit
RepublicanAppointed
Judges
Democratic
Appointed
Judges
Vacancies
First
Total
Seats at
end of
Bush II
6
Total
Seats At
Beginning
of Obama
6
New
Vacancies
During
Obama
2
Current
RepublicanAppointed
Judges
2
Current
Democratic
Appointed
Judges
4
Vacancies
1
Partisan
Control at
End of Bush
II
Republican
0
Partisan
Control
(as of
6/10/14)
Democratic
3
2
Second
13
6
6
1
Even
13
3
5
8
0
Democratic
Third
14
6
Fourth
15
7
6
2
Even
14
3
5
7
2
Democratic
4
4
Republican
15
2
5
9
1
Democratic
Fifth
17
13
4
0
Republican
17
5
10
5
2
Republican
Sixth
Seventh
16
10
5
1
Republican
16
3
10
5
1
Republican
11
7
3
1
Republican
11
1
7
3
1
Republican
Eighth
11
9
2
0
Republican
11
1
8
3
0
Republican
Ninth
28
11
16
1
Democratic
29
4
9
20
0
Democratic
Tenth
12
8
4
0
Republican
12
3
5
7
0
Democratic
Eleventh
12
7
5
0
Republican
12
6
3
6
3
Democratic
Federal
12
8
4
0
Republican
12
5
5
7
0
Democratic
D.C.
11
6
3
2
Republican
11
2
4
7
0
Democratic
Total
178
101
64
13
10
Republican
1 Democratic
2 Evenly
Split
179
40
78
91
10
4 Republican
9 Democratic
E. Judicial Emergencies
Among the 22 judges confirmed during the Senate’s last work period, 12 filled seats
that the Administrative Office of U.S. Courts had designated as “judicial
emergencies,” which means the courts do not have enough judges to handle their
existing caseloads. With these 12 confirmations, the total number of judicial
emergencies dropped from 36 to 25. Nonetheless, that number is unsustainably high,
and remains an increase from the federal judiciary’s 20 emergencies when President
Obama took office. Just two of the 13 emergency vacancies without a nominee are in
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The State of the Judiciary: Judicial Selection During the 113th Congress
states with two Democratic senators, while the other 11 are in states with at least one
Republican senator.
III. President Obama’s Judicial Nominees
Seventeen months into his second term, President Obama’s record on judicial
nominations reveals three overarching trends: 1) his nominees’ historic personal
diversity; 2) a recent increase in the number of nominees with experience representing
individuals and working in the public interest; and 3) a higher nomination rate—
particularly in states with two Democratic Senators—after a slow start at the
beginning of his first term.
A. Nominees’ Demographic and Professional Backgrounds
Professional Diversity
In February 2014, Alliance for Justice released a comprehensive (and regularly
updated) report that analyzes the professional experience of every Obama judicial
nominee.14 The report found that lawyers with experience working as public
defenders, plaintiff lawyers who represent individuals like consumers or employees,
civil rights attorneys, and lawyers at public interest organizations are dramatically
underrepresented on the federal bench. Specifically, the report finds that, of President
Obama’s nominees:



Only 10—fewer than four percent—have worked as lawyers at public
interest organizations;
Only 12 have significant experience representing workers in labor and
employment disputes; and
Prosecutors outnumber public defenders (state or federal) by more than three
to one.
Broad professional diversity is essential to both enhance judicial decisionmaking and
to preserve public trust in our justice system. Judges with experience advocating for
individual rights—and particularly the rights of society’s more marginalized, less
privileged members—bring a perspective to the bench that helps them understand
13
The State of the Judiciary: Judicial Selection During the 113th Congress
the claims of everyday Americans. In addition, the perception of a fair and impartial
judiciary is heightened when public interest lawyers are fairly represented on the
bench. When people enter the courthouse with their fundamental rights or liberty at
stake, they should feel like their “day in court” is a meaningful opportunity to be
heard, not a mere formality. A federal bench devoid of lawyers who have represented
everyday Americans or otherwise worked for the public interest, however, is less
likely to inspire public confidence.
Responsibility for increasing the professional diversity of our federal courts extends
well beyond the White House, and includes all 100 Senators as well as the selection
commissions established by senators to initially screen and interview candidates for
judicial vacancies. By tradition, home state senators typically take the lead in selecting
candidates for district court vacancies, and in some jurisdictions that senatorial
courtesy also extends to circuit court nominations. That’s why, in March 2014,
Alliance for Justice submitted a letter to every U.S. Senator urging them to “work
toward filling judicial vacancies with judges who are not only exceptionally wellqualified, but who also reflect the full diversity of the legal profession.” 15
Looking at nominations so far in 2014, the outlook for a professionally diverse bench
is promising. With Senate rules reform allowing for a more inclusive approach to
judicial nominations, President Obama’s most recent nominees suggest that
professional diversity is a high priority. Of the 18 men and women nominated so far
this year, 13 (or 72%) have prior experience as public defenders, solo practice criminal
defense lawyers, plaintiff attorneys who have represented individuals, or tenured
academics. An additional 2014 nominee pending for the Third Circuit, Cheryl Krause,
established a partnership between the Public Interest Law Center of Philadelphia and
her law firm, Dechert LLP. Through this partnership, known as the Philadelphia
Project, Krause has represented disabled children and their families, including in class
action litigation.
With more than two years left in office and more than 50 vacancies right now
without a nominee, there is ample opportunity for the president—with the essential
cooperation of the Senate—to continue this trend and to further “broaden the
bench” with more professionally diverse judges.
Below, two charts provide an overview of the professional backgrounds for all of
President Obama’s circuit and district court nominees. Additional statistics can be
found in AFJ’s report, Broadening the Bench: Professional Diversity and Judicial Nominations.
14
The State of the Judiciary: Judicial Selection During the 113th Congress
Racial, Gender, Sexual Orientation, and Disability Diversity
President Obama’s nominees have been the most diverse in American history. Fortytwo percent of his appointees have been women and 37% have been people of color,
a far higher percentage than any of his predecessors. President Clinton has the next
best record; 29% of his appointees were women and 24% of his appointees were
people of color. President Obama has already appointed nearly five times as many
Asian Americans (19 to 4), and nearly twice as many African Americans (46 to 24), as
President George W. Bush appointed in his entire presidency. And with Michelle
Friedland’s confirmation to the Ninth Circuit in April, Obama reached the milestone
of appointing 100 female federal judges. President Obama has now appointed 111
women, while Bush appointed a total of 71.
President Obama also has the best record of any president in appointing openly gay
federal judges. Eight openly gay nominees have been confirmed so far, including
Todd Hughes, the first openly gay circuit court judge, and two more are pending.
15
The State of the Judiciary: Judicial Selection During the 113th Congress
Darrin Gayles, currently pending for a seat in the Southern District of Florida, would
be the first openly gay African American man on the federal bench. Prior to the
Obama presidency, only one openly gay nominee had been confirmed to a lifetime
judgeship.
What’s more, President Obama’s 26 pending judicial nominees would only add to the
diversity of the federal bench: More than 50% of pending judicial nominees are
women, and more than 30% are African American.
Article III (Lifetime) Judges by Gender and Ethnicity
President
(Term)
Obama
confirmed
Obama
pending
Total
Male
Female
White
African
American
Hispanic
Asian
Pacific
American
Native
American
154
(58.1%)
12
(46.2%)
111
(41.9%)
14
(53.8%)
172
(64.9%)
16
(61.5%)
46
(17.4%)
8
(30.8%)
29
(10.9%)
2
(7.7%)
19
(7.2%)
0
1
(0.4%)
0
14
9
5
7
5
0
1
305*
175
130
195
59
31
327
256
(78.2%)
71
(21.8%)
269
(82.2%)
24
(7.3%)
378
267
(70.6%)
111
(29.4%)
285
(75.3%)
193
157
(81.3%)
36
(18.7%)
383
351
(91.6%)
262
221
(84.3%)
265*
26*
Native
Hawaiian
or Other
Pacific
Islander
1
(0.4%)
Openly
GLBT
People
with
Disabilities
8
1
0
2
0
1
0
2
0
20
2
1
12
1
30
(9.1%)
4
(1.2%)
0
0
0
2
62
(16.4%)
25
(6.6%)
5
(1.3%)
1
(0.2%)
0
1
3
172
(89.1%)
13
(6.7%)
8
(4.1%)
0
0
0
0
1
32
(8.8%)
360
(93.9%)
7
(1.8%)
14
(3.6%)
2
(0.5%)
0
0
0
1
41
(15.7%)
205
(78.2%)
37
(14.1%)
16
(6.1%)
3
(1.1%)
1
(0.3%)
0
0
1
Obama
withdrawn/
not
renominated
Obama
total
Bush II
(2001-2008)
confirmed
Clinton
(1993-2000)
confirmed
Bush I
(1989-1992)
confirmed
Reagan
(1981-1988)
confirmed
Carter
(1977-1980)
confirmed
Age
The average age of President Obama’s appointees at nomination—51.2 years old—
remains considerably higher than the average age of the last three Republican
presidents’ respective confirmed judges. Recent confirmations, however, suggest a
downward trend in age, particularly in the circuit courts. So far in 2014, the Senate has
confirmed six circuit court judges who were 50 years old or younger at nomination,
including three judges (Michelle Friedland to the Ninth Circuit, John Owens to the
Ninth Circuit, and Gregg Costa to the Fifth Circuit) who were 42 or younger. As a
result, the average age of Obama’s circuit court judges has dropped by more than one
16
The State of the Judiciary: Judicial Selection During the 113th Congress
year since our October report. If this trend continues over the remaining two and a
half years of his presidency, President Obama’s appellate court picks will average
under 50 years in age.
As for district court seats, President Reagan nominated more than 30 people under
40 years old to the district court bench, while President Obama has nominated only 6,
and none so far in 2014. Moreover, the district court appointees of Presidents Bush
II, Clinton, Bush I, Reagan, and Carter all averaged less than 50 years in age.
Conversely, the average age of President Obama’s district court judges is 51 years old.
The following two charts show the average age of confirmed judges over the last five
presidencies and the age distribution of President Obama’s nominees.
17
The State of the Judiciary: Judicial Selection During the 113th Congress
B. Nominations
During his first term in office, President Obama significantly trailed Presidents
George W. Bush and Clinton in the number of nominations he made. This has
changed in his second term, and now President Obama’s total number of
nominations far exceeds President Bush and is approaching President Clinton. This
recent increase in nominations is partly attributable to the relatively high vacancy rate
during President Obama’s administration; while in office, Obama has had 45 more
new vacancies than Clinton, and 63 more new vacancies than Bush.
As illustrated in the preceding chart, President Obama made relatively few district
court nominations in his first year in office (when there also was a Supreme Court
vacancy), and he continued to trail his predecessors in his second and third years even
after ramping up his district court nominations. But President Obama has outpaced
both of his immediate predecessors in second term district court nominations, and
now has made more district court nominations than President Bush, while closing the
gap with President Clinton.
As for circuit court nominations, the president maintained a steady pace through his
first three years in office, before falling off a bit in 2012 (as is often the case in
election years). In his second term, President Obama has made strides toward
nominating judges for each circuit court vacancy, and now there are only six circuit
court vacancies without a nominee, all of which are in states with at least one
18
The State of the Judiciary: Judicial Selection During the 113th Congress
Republican senator. Overall, President Obama’s pace in nominating circuit court
judges has matched that of his immediate two predecessors, and now, nearly halfway
into his sixth year in office, Obama has nominated about the same number of circuit
judges as Presidents Clinton and Bush II.
President Obama’s increased nominations pace has closed the gap of current
vacancies without nominees to 38—34 of which are in states with at least one
Republican Senator. Particularly with the Senate increasing its pace in confirming
judges and clearing the backlog of nominees on the Senate calendar, the president
and home state Senators must move swiftly to name candidates for longstanding
vacancies.
C. Early-Stage Obstruction of Judicial Nominees
Since our last report, Republican Senators have continued to use behind-the-scenes
obstruction to delay nominations and prevent President Obama from filling
vacancies, including long standing vacancies designated as “judicial emergencies.”
Republicans have also abused the Judiciary Committee’s “blue slip” courtesy to block
well-qualified nominees in their home states—even nominees they initially approved.
These forms of obstruction, aimed at disrupting nominations early in the process, are
particularly insidious because they often operate in secret, without public explanation
or accountability.
Senators typically have the primary responsibility for identifying district court
candidates in their home states, and in some cases this prerogative extends to circuit
court nominees as well. During President Obama’s administration, Republican
senators have used this privilege to delay the nomination process interminably, even
with a growing list of vacancies and judicial emergencies. As we noted in our last
report, a string of timely nominations in states with two Democratic senators brought
this form of Republican obstruction into sharp focus: 87% of current judicial
vacancies without a nominee are in states with at least one Republican Senator; Texas
and Pennsylvania combine for 19 of those vacancies—50% of the national total.16
Texas is a particularly egregious example of this delaying tactic. Texas has 11 district
court vacancies (eight are currently vacant, three more have been announced) and
two Fifth Circuit vacancies without a nominee. One seat in the Western District of
Texas has been empty nearly six years, since November 2008. Two others—one each
in the Southern and Eastern Districts—have been vacant well over two years. Six of
these vacancies are “judicial emergencies.” Despite this vacancy crisis, it took Senators
John Cornyn and Ted Cruz until April 2013 to set up a selection committee. The
committee then took seven months, until December 2013, to select finalists for six of
the current district court vacancies, and did not consider a seventh vacancy in the
Northern District. Now five months later, the White House is still waiting for the
senators to provide a full slate of names, and the selection committee has not yet
turned its attention to either the five remaining district court seats or the Fifth Circuit.
19
The State of the Judiciary: Judicial Selection During the 113th Congress
The White House can nominate without home state senator support, but is reluctant
to do so, even in cases of egregious delay, because of the Judiciary Committee’s “blue
slip” courtesy. When the President makes a nomination, the Judiciary Committee
sends a blue sheet of a paper to each home state senator asking whether he or she
approves of the nominee. And until both blue slips are returned favorably, the
Committee’s Chairman, Senator Patrick Leahy, D-Vt., will not hold a confirmation
hearing. This practice is an important part of the Senate’s constitutional obligation to
provide “advice and consent” because it ensures that senators have a meaningful say
in who will serve their constituents as federal judges. But it also means that a
nomination can be held up indefinitely, and ultimately defeated, by a single
unreturned blue slip.
One such defeat came in January 2014, when President Obama decided not to renominate Southern District of Florida nominee William Thomas because of
Republican Senator Marco Rubio’s objection.17 Thomas, a Florida state court judge,
would have been the first openly gay African American man in the federal judiciary,
and would have filled a judicial emergency. Senator Rubio had pledged to support all
nominees recommended by the commission he and Democratic Senator Bill Nelson
established, but he never returned a blue slip for Judge Thomas despite the
commission’s recommendation. Senator Rubio’s only stated reason for rescinding his
support—that Judge Thomas had been too lenient in two criminal cases—was
publicly refuted by state prosecutors.18 In any event, without a confirmation hearing
Judge Thomas never had the opportunity to respond to Senator Rubio’s concerns,
and was left pending for over a year before the White House pulled his nomination.
Another ongoing blue slip delay is in the Eastern District of North Carolina, where
federal prosecutor Jennifer May-Parker has been nominated to the oldest vacancy in
the country—the seat, a judicial emergency, has been empty since 2005. May-Parker
would be the first African American to serve in the Eastern District, and the first
African American woman to serve in any of North Carolina’s federal district courts.
Republican Senator Richard Burr recommended May-Parker for the seat back in
2009, but has withheld his blue slip without explanation since her nomination in
2013.19 North Carolina’s other Senator, Democrat Kay Hagan, returned her blue slip
for May-Parker last year.
Last July, public anger over Senate gridlock forced Republicans to back down from
their public obstruction of a slate of executive branch nominees. Then in November,
transparently political filibusters of the President’s nominees to the D.C. Circuit, as
well as a nominee to the Federal Housing Finance Agency, required rules reform to
protect democratic process in the Senate. Early-stage obstruction of the judicial
nomination process, while not as public, is no less real or harmful to our judiciary
than filibuster abuse on the Senate floor. To be sure, home state senators’ ability to
meaningfully consult with the president about judicial nominations should be
preserved. But as with the filibuster, when certain traditions and courtesies are
abused, the White House and Senate leadership should consider reforms to ensure
that the federal judiciary is not held hostage to political brinksmanship.
20
The State of the Judiciary: Judicial Selection During the 113th Congress
IV. Conclusion
With the 2014 mid-term elections approaching, the good news is that Senate
Democrats have placed a heavy emphasis on confirming judges and clearing judicial
nominees from the Senate calendar. But the recent increase in confirmations has
come despite Republican obstruction that continues to threaten the confirmation
process, and calls into question the Senate’s ability to confirm recent nominees before
November. Particularly given these ongoing efforts to slow-walk judicial
confirmations, it is imperative that President Obama make nominations to
longstanding vacancies. These nominations should continue the trend of supremely
qualified nominees who add both personal and professional diversity to the federal
bench.
Finally, both President Obama and Senate Democrats should consider reforms to the
courtesies and traditions that permit Senate Republicans to delay and obstruct the
nomination process at its earliest stages. Whether it is filibuster abuse on the Senate
floor, permitting home state vacancies to languish indefinitely, or withholding blue
slips on agreed-upon nominees, Senate Republicans should not be allowed to
hamstring the federal courts and limit the ability of all Americans to seek justice.
21
The State of the Judiciary: Judicial Selection During the 113th Congress
Appendix I: Nominees Pending on the Senate
Floor as of 6/10/2014
Nominees
Nominated To
Nomination Date
Salvador Mendoza
Staci Yandle
Cheryl Ann Krause
Beth Bloom
Darrin Gayles
Carlos Mendoza
Paul Byron
Total: 7
ED WA
SD IL
3d Cir. (PA)
SD FL
SD FL
MD FL
MD FL
1 circuit, 6
district
1/16/2014
1/16/2014
2/5/2014
2/5/2014
2/5/2014
2/5/2014
2/5/2014
SJC
Hearing
Date
3/12/14
3/12/14
3/12/14
4/1/14
4/1/14
4/1/14
4/1/14
Reported Out of
Committee
Judiciary
Committee Vote
4/3/14
4/3/14
4/3/14
5/8/14
5/8/14
5/8/14
5/8/14
17-1
17-1
Voice Vote
Voice Vote
Voice Vote
Voice Vote
Voice Vote
22
Emergency?
Yes
Yes
Yes
Yes
Yes
5
Emergencies
Gender
Race
M
F
F
F
M
M
M
H
AfA
W
W
AfA
H
W
3 W, 2
AfA, 2 H
3 F, 4 M
The State of the Judiciary: Judicial Selection During the 113th Congress
Appendix II: Vacancies Without Nominees
Maps as of 6/4/2014
23
The State of the Judiciary: Judicial Selection During the 113th Congress
24
The State of the Judiciary: Judicial Selection During the 113th Congress
25
The State of the Judiciary: Judicial Selection During the 113th Congress
Notes
1
See Niels Lesniewski and Humberto Sanchez, ‘Nuclear’ Nominations Aftermath Slows Senate to
Crawl, ROLL CALL (Apr. 14, 2014), available at http://blogs.rollcall.com/wgdb/nuclearnominations-aftermath-slows-senate-to-crawl/.
2
Alexander Bolton, Reid Hits the Gas on Judicial Nominees, THE HILL (May 26, 2014), available at
http://thehill.com/homenews/senate/207157-reid-hits-the-gas-on-court-nominees.
3
The reduction in nominees pending on the Senate floor was partially offset by the Senate
Judiciary Committee reporting out additional nominees.
4
Alliance for Justice, Broadening the Bench: Professional Diversity and Judicial Nominations (March 2,
2014), available at http://www.afj.org/reports/professional-diversity-report.
5
Editorial, The Homogenous Federal Bench, THE NEW YORK TIMES (February 6, 2014), available
at http://www.nytimes.com/2014/02/07/opinion/the-homogeneous-federalbench.html?_r=0.
6
See Humberto Sanchez, Democrats Eye ‘Nuclear Option’ Redux, ROLL CALL, (May 20, 2014)
(quoting senior Democratic aide: “It’s called debate time for a reason . . . It’s supposed to
be used for debate, not to run out the time arbitrarily. Republicans are making a good case
for use it or lose it.”), available at http://blogs.rollcall.com/wgdb/democrats-eye-nuclearoption-redux/?dcz.
7
See Jonathan Weisman and Jennifer Steinhauer, Senators Reach Agreement to Avoid Fight Over the
Filibuster, THE NEW YORK TIMES (July 16, 2013) (quoting Republican Senator Lindsay
Graham, “[CFPB director nominee Richard] Cordray was being filibustered because we
don’t like the law. . . . That’s not a reason to deny someone their appointment. We were
wrong.”), available at http://www.nytimes.com/2013/07/17/us/politics/senators-nearagreement-to-avert-fight-over-filibuster.html?pagewanted=1&_r=0.
8
See Paul Gordon, What the GOP isn’t saying about the D.C. Circuit’s Caseload, PEOPLE FOR THE
AMERICAN WAY BLOG, (Sept. 9, 2013), available at http://blog.pfaw.org/content/whatgop-isnt-saying-about-dc-circuits-caseload.
9
Alliance for Justice and its partners in the Fix the Senate Now coalition—including
Common Cause, the Sierra Club, and the Communications Workers of America—led the
lobbying effort to reform Senate rules on nominations. In December, The Hill recognized
Fix the Senate Now’s work on rules reform as one of the “Top 10 lobbying victories of
2013.” See Kevin Bogardus, Top 10 Lobbying Victories of 2013, THE HILL, (Dec. 17, 2013),
available at http://thehill.com/business-a-lobbying/business-a-lobbying/193465-top-10lobbying-victories-of-2013.
10
Letter to The Hon. Patrick J. Leahy and The Hon. Charles E. Grassley, available at
http://www.judgingtheenvironment.org/library/letters/Friedland-partners.pdf.
11
Charles Fried and Laurence H. Tribe, David Barron Should be Confirmed to US Court of Appeals,
THE BOSTON GLOBE, Opinion (May 13, 2014), available at
http://www.bostonglobe.com/opinion/2014/05/12/david-barron-should-confirmedcourt-appeals/5WHjPFvMfHqulSMWxO81CK/story.html.
12
See U.S. Congressional Research Service, Cloture Attempts on Nominations: Data and Historical
Development, (R32878; June 26, 2013), by Richard S. Beth (tracking cloture action on judicial
and executive nominations by time period, from 1967-2012).
13
See Stephen Spaulding, Two Shameful Milestones, COMMON CAUSE, COMMON BLOG (March
31, 2014), available at http://www.commonblog.com/2014/03/31/two-shamefulmilestones/.
26
The State of the Judiciary: Judicial Selection During the 113th Congress
14
Alliance for Justice, Broadening the Bench: Professional Diversity and Judicial Nominations (March 2,
2014), available at http://www.afj.org/reports/professional-diversity-report.
15
The letter was signed by more than 30 labor, civil rights, environmental, good government
and other groups, and is available at: http://www.afj.org/wpcontent/uploads/2014/03/Letter-to-Senators-re-Professional-Diversity-3.27.2014.pdf.
16
See Andrew Cohen, How to Secede from the Union One Judicial Vacancy at a Time, THE
ATLANTIC (Apr. 8, 2014), available at,
http://www.theatlantic.com/politics/archive/2014/04/how-to-secede-from-the-unionone-judicial-vacancy-at-a-time/360207/.
17
See Jennifer Bendery, White House Gives Up on William Thomas, Gay Black Judicial Nominee
Blocked by Marco Rubio, THE HUFFINGTON POST (Jan. 7, 2014), available at,
http://www.huffingtonpost.com/2014/01/07/marco-rubio-judicialnominee_n_4557185.html.
18
See Lizette Alvarez, Rubio Withdraws Support for Gay Black Judge’s Nomination to the Federal Bench,
THE NEW YORK TIMES (Sept. 23, 2013), available at,
http://www.nytimes.com/2013/09/24/us/politics/rubio-withdraws-support-for-gayblack-judges-nomination-to-the-federal-bench.html.
19
See Jennifer Bendery, Richard Burr Dodges Questions on Why He’s Blocking a Judicial Nominee He
Previously Supported, THE HUFFINGTON POST (Jan. 14, 2014), available at
http://www.huffingtonpost.com/2014/01/14/richard-burr-judicialnominee_n_4597470.html.
27