Recent media reports on President Obama's judicial nominations misleadingly suggest that his confirmation record is now better than that of his predecessor George W. Bush, but rampant GOP obstructionism is still contributing to an alarming amount of "judicial emergencies" across the country.
National Review Online and the right-wing Heritage Foundation recently used Obama's overall total as well as his 2014 first quarter judicial confirmation numbers to claim that the president "outpaces" his Republican predecessor, at a rate that will eventually "steamroll" the total number of Bush appointments to the federal bench.
Unfortunately, this misinformation appears to have been spurred by recent media stories that reported raw confirmation numbers, without sufficient context. For example, according to Politico, Obama is now "outpacing George W. Bush on judges," because he has succeeded in getting 237 judges confirmed, while 234 judges were confirmed "by this point in [Bush's] presidency." This total number of seated judges is what right-wing media choose to focus on in their extrapolation of Obama's ultimate record, while ignoring the president's actual seating rate (confirmations in light of total vacancies). When the number of vacancies Obama has to deal with in comparison to Bush is added to an examination of their respective records, it is evident that the president still has a long road ahead to leave office with a rate similar to his predecessor, especially in the face of Republicans' unprecedented obstructionism.
Even though the total number of Obama's confirmations has exceeded Bush's, Obama has more vacancies to fill and has to appoint more nominees than his predecessor. According to the Alliance for Justice, "Only 79% of Obama's nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%." As a result, says AFJ, "Bush fared significantly better in getting his nominees confirmed" than Obama has so far.
This has real-world consequences by delaying and denying justice across the country.
Obama still has 31 judicial nominees pending, many of whom would be confirmed to jurisdictions facing what's known as a "judicial emergency." These emergencies occur when judicial vacancies continue despite an excessive caseload in that jurisdiction. As of April 10, there are 36 vacancies that have been classified as judicial emergencies.
Judicial emergencies exist all over the country, and a new comprehensive study from the Center for American Progress (CAP) notes the problem is particularly severe in Texas. Although Senate Democrats changed the filibuster rules last year so that long-delayed judicial nominees could be confirmed with a simple majority, some Republican Senators have found new ways to block nominees. According to the CAP report, Texas' Republican Senators Ted Cruz and John Cornyn are among those whose obstructionism has resulted in years-long vacancies on the federal bench:
When President Barack Obama was first elected in November 2008, Texas had a complete slate of district court judges. However, that was the last time Texas's federal courts operated at full capacity. Less than a month after the 2008 election, on November 30, 2008, U.S. District Court Judge W. Royal Furgeson Jr., who served on the Western District of Texas, took senior status -- a form of semiretirement for federal judges. Now, some 2,000 days later, his old seat remains unfilled.
Because of the deference to home-state senators to recommend judicial nominees, the blame for this judicial vacancy crisis falls squarely on the shoulders of Texas's two U.S. senators, Republicans John Cornyn and Ted Cruz, who have failed to act and address this serious problem.
Although Judge Furgeson's seat has been vacant the longest, his empty spot on the federal bench is just the tip of the iceberg of what has become a judicial vacancy crisis in Texas. As of March 19, there are 10 current vacancies on federal courts that serve Texas, the most of any state in the nation. If nothing is done about this situation, in the next year, there will be at least 13 vacancies on these courts. The result of these current vacancies is a backlog of more than 12,000 cases and a denial of access to justice for Texans.
Right-wing media have pretended to care about judicial emergencies in the past, but they have largely ignored Obama's ongoing efforts to address those emergencies. In fact, when National Review Online contributor Jonathan Adler picked up the Politico story in a post in The Washington Post's libertarian blog The Volokh Conspiracy, he failed to mention the judicial emergencies that remain in the federal judiciary.
Any future media stories on judicial confirmations must explain the extent and cause of current judicial vacancies in order to accurately report the president's progress. As Andrew Cohen of The Atlantic explained, the GOP obstructionism is not just unprecedented, but also strategic:
What's happening here is part of a blunt political and ideological strategy:These particular senators have maneuvered so that the citizens of red states have less federal judicial oversight than citizens of blue states and purple states. This is great news if you are a secessionist or hate the idea of federal power exercised through the judiciary. It's terrible news if you believe that the rule of law requires that very federal judicial authority, equal throughout the nation, as part of the delicate balance imposed by the Constitution and Bill of Rights.
This strategy is what Cohen calls "seceding from federal judicial authority by attrition," and it is "dooming ... constituents to a third-world legal system."
The reports that Obama is making strides in fully staffing the federal judiciary are welcome news, but until the judicial emergencies are addressed -- particularly by Republican lawmakers who insist on blocking qualified nominees -- media should note that it is too soon to celebrate.