A Democrat and a Republican found common ground at a Brookings Institution forum Monday examining the slow pace of judicial confirmations. Part of the problem is a lack of urgency from the White House about nominating judges, they said.
Eleanor Acheson, who was an Assistant Attorney General overseeing the Justice Department’s Office of Policy Development (now the Office of Legal Policy) in the Bill Clinton administration; and Manus Cooney, who served as chief counsel and staff director to then-Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) in the 1990s, said filling empty seats on the U.S. District Courts and the U.S. Courts of Appeal is not a Barack Obama administration priority.
“Your highest calling is to have a nominee for every vacancy,” said Acheson. “And that is absolutely critical because if you do not have that kind of pressure, whatever it is that you run into, you don’t have standing to complain about a lot.”
While Senate Democrats complain that Republicans use Senate rules to block Obama’s nominees from confirmation, the numbers tell a more nuanced story.
There are 99 current vacancies on the U.S. district courts and courts of appeal, according to the Administrative Office of U.S. Courts. But there are only 46 pending Obama nominees for the posts. The federal and appellate courts combined have 856 seats.
Since Obama took office two years ago, the Senate has confirmed 67 of his judicial nominees, including Amy Totenberg and Steve Jones on Monday to sit on the U.S. district court in the Northern District of Georgia.
Acheson, who helped select judicial nominees during the Clinton administration, said Obama hasn’t devoted the necessary resources to create an infrastructure for making judicial appointments, one cause of the vacancies. Acheson’s Obama administration successor, Christopher Schroeder, wasn’t confirmed until more than a year after the president took office.
Cooney added that the Senate tends to focus on issues the president is pushing. He and Acheson said President George W. Bush made judicial appointments a priority, helping to ease the confirmation of his 100 judicial appointees.
“If we want to see some change in the … time it takes to confirm a judge and the process by which that confirmation takes place, you would need to make it a priority and the president would need to do so,” Cooney said
White House spokesman Reid Cherlin said nominations for judgeships “have always been a priority” of the Obama administration. But he said the judicial nominees have endured “unprecedented obstacles to confirmation.”
“Now, as judicial emergencies mount, we’re maintaining a brisk pace of nominations, working closely with the Senate to overcome the hurdles of the last year, and we look forward to Senate action with all due speed to get these individuals confirmed and serving,” Cherlin said in a statement to Main Justice.
Acheson also blamed the Senate for the number of judicial vacancies. She said Senate rules and senator grievances that are unrelated to nominees bog down the confirmation of judges.
“It is ridiculous to have a process that ends a nomination based on some of the things I’ve heard,” Acheson said. “It doesn’t happen often, but it’s there.”
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has been vocal about the need to confirm judicial nominees, blaming Republicans for hold ups. Republicans have said they are handling the nominations in a timely and responsible manner.