State of The Judiciary After 111th Congress

THE STATE OF THE JUDICIARY
President Obama and the 111th Congress
A report by
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Alliance for Justice
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 AFJs Washington headquarters. Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC 20036 202.822.6070 All material within this report is protected by copyright law and may not be reproduced without the express written consent of Alliance for Justice.
2011 Alliance for Justice
Contents
I. Introduction ................................................................................................................... 4 II. Republican Obstructionism Created a Judicial Vacancy Crisis................................. 7 A. Republican-Dominated Courts ............................................................................ 8 B. Number and Pace of Obama Nominations....................................................... 11 C. Vacancies and Judicial Emergencies ............................................................... 15 D. Confirmations ..................................................................................................... 20 III. President Obamas Judicial Nominees ................................................................... 22 A. Diversity .............................................................................................................. 22 1. Gender and Racial Diversity ........................................................................ 22 2. Professional Diversity and Background....................................................... 24 B. Age of Nominees................................................................................................ 27 C. Profiles of Appellate Court Nominees ............................................................... 29 IV. Conclusion ............................................................................................................... 39
The State of the Judiciary: President Obama and the 111th Congress
I. Introduction
One of the most important aspects of a presidents legacy is the nominations he makes to the federal bench. A presidents other policies and programs, no matter how laudatory, may be undone by subsequent administrations and Congresses. But federal judges enjoy lifetime appointments, and dramatically shape the outcome of decisions on a host of issues that directly affect the lives of everyday Americans. Against that backdrop, President Barack Obama had a very uneven record with judicial nominations during the 111th Congress. In terms of numbers, President Obama steadily lost ground to entrenched Republican obstruction in the U.S. Senate, ending his With so few judges first two years with almost double the number of vacancies that he confirmed during inherited. Of the 105 nominations submitted by President Obama the 111th Congress, during the first two years of his term, only 62 2 Supreme Court the federal judiciary justices, plus 16 courts of appeals and 44 district court judges were was pushed confirmed. That is the smallest percentage of judicial confirmations into crisis. over the first two years of any presidency in American history. It is also the fewest number of confirmations since 1977, during President Carters first two years in office, when the judiciary was 40% smaller.1 As a result, President Obama barely altered Republican domination of the courts. In terms of the nominees who were opposed, President Obama had a mixed record of overcoming Republican opposition. Three nominees who received more than 6 votes against them in the Senate Judiciary Committee were confirmed:2 David Hamilton, William Martinez, and Benita Pearson. Four others who crossed that threshold Goodwin Liu, Edward Chen, Jack McConnell, and Louis Butler never received votes on the floor. With so few judges confirmed during the 111th Congress, the federal judiciary was pushed into crisis. Vacancies increased from 55 to 97 leaving nearly 1 in 8 judgeships unfilled. Judicial emergencies3 more than doubled, from 20 to 46. Court filings also increased during this period.4 With fewer judges available to handle growing dockets, access to justice took a severe hit. One judge complained that the dearth of judges threatened assembly-line justice for criminal defendants,5 while in many districts civil cases were severely delayed.6
For the most part, responsibility for the growing judicial crisis should be laid at the feet of Senate Republicans, who embarked on a deliberate and unprecedented pattern of blocking and delaying floor votes on every nominee, regardless of whether they opposed the nominee in committee or on the floor.7 Another factor was President Obamas slow pace of nominations during his first year,8 thereby losing precious Senate Judiciary Committee and floor time to confirm his nominees.9 His stated reason for the slow pace that he wanted time to build support from home-state senators10 did not translate into lessened overall opposition. Moreover, despite President Obamas Republicans obstruction, the President declined to publicly criticize opponents the way President George W. Bush did.11 Senate window of Democrats also played a role. Even though they held 59 or 60 seats, opportunity to Senate leaders held only two cloture votes i.e., votes needed to break leave his mark on Republican filibusters on judicial nominees during the 111th the federal courts is Congress. As a result, 43 nominees were returned to the President, including 19 nominees who were awaiting confirmation votes on the closing. Senate floor. On the positive side, the confirmations of Sonia Sotomayor and Elena Kagan to the U.S. Supreme Court were historic. The Court now has three sitting female justices for the first time in its history. Unprecedented gender and racial diversity also marked President Obamas courts of appeals and district court nominees. Our analysis of the Obama Administrations judicial nominees in the 111th Congress shows: President Obama saw a smaller percentage of his nominees confirmed 58% in the first two years of his presidency than any president in American history, and smaller numbers 62 confirmed during his first two years than any president since Carter. Judicial vacancies increased from 55 to 97 during President Obamas first two years, whereas under both Presidents Bush and Clinton, vacancies declined. The number of judicial emergencies more than doubled from 20 to 46, leaving 29 states without enough judges to handle the case load, thereby delaying justice for both plaintiffs and defendants. Senate Republicans used every parliamentary tool they could to obstruct and delay President Obamas nominees, including placing secret holds on each judicial nominee who reached the Senate floor, even those that had the support of Republican home-state senators. They also denied votes on 13 nominees at the end of the 111th Congress who received no Republican opposition in committee. 5
When President Obama took office, 59.5% of all federal judges had been appointed by Republicans, but after two years of his administration, Republican appointees still accounted for 57.6% of judgeships. President Obamas nominees were the most diverse group in American history. He nominated Sonia Sotomayor and Elena Kagan to the Supreme Court. In lower courts, 41% of his nominees were people of color and 45% were female, doubling the rate of women appointed in the Bush Administration. President Obamas nominees largely served in private practice, as judges, or as prosecutors prior to their nominations, while fewer were public defenders, legal-aid attorneys, or non-governmental public interest attorneys.
Because of the realities of the political calendar and the contentious partisan atmosphere in Congress, the Presidents window of opportunity to leave his mark on the federal courts during this term is closing, lending a sense of urgency to the current debate over nominees. The 2010 midterm elections resulted in fewer Democrats in the Senate.12 Moreover, fewer nominees are typically confirmed during presidential election years than in other years, as the party which does not hold the presidency seeks to keep seats open in case its candidate is elected president. At the outset of the 112th Congress, the Senate considered filibuster reform as a way of ending the obstruction of judicial nominees, but settled instead for an informal agreement of greater comity and banning the use of secret holds.13 It remains to be seen whether the judicial nominations process will benefit from this effort. Many Senators have pushed for a return to regular order on judicial nominees, whereby the body would vote on nominees on a regularized basis, and this has been taking place. Nonetheless, the backlog of vacancies and judicial emergencies remains alarmingly high.
II. Republican Obstructionism Created a Judicial Vacancy Crisis

During the 111th Congress, Republicans implemented a strategy to obstruct President Obamas judicial nominations, thereby maintaining the Republican dominance of the courts. This was no secret, as Republican Minority Leader Mitch McConnell (R-KY) brazenly told the New York Times that I am amused with [Democrats] comments about obstructionism. . . . I wish we had been able to obstruct more.14 The result was to create a judicial vacancy crisis that burdens the judiciary and delays justice for everyday Americans.
I am amused with [Democrats] comments about obstructionism... I wish we had been able to obstruct more. Senate Minority Leader Mitch McConnell (R-KY)
Senate Republicans announced their plan at the very beginning of Barack Obamas presidency. On March 2, 2009, six weeks after he took office, all the Republicans in the Senate signed a letter effectively appropriating to themselves the nominating power of the executive branch by vowing to block nominees whom they did not approve.15
Republicans not only blocked judicial nominees, they also blocked a key person who vets nominees for the Obama Administration. Christopher Schroeder, nominated to head the Department of Justices Office of Legal Policy, was not confirmed until April 21, 2010, eleven months after he was nominated. Republican obstructionism had a significant, deleterious effect on the pace and number of judicial confirmations during the 111th Congress. Since the Senate operates largely on the basis of unanimous consent agreements whereby legislative action takes place only when no Senator objects to that action a single Senator wishing to halt the flow of governance can stop the process by either objecting to a consent request in person or through a secret hold. This requires time-consuming cloture votes to overcome. Historically, cloture votes have only been necessary for highly controversial nominees to courts of appeals. Instead, Republicans repeatedly denied consent on almost every nomination, including those for district court seats, and regardless of whether the nominee faced opposition in the Judiciary Committee. The same held true for nominees to seats that were judicial emergencies.
A. Republican-Dominated Courts The first two years of the Obama Administration brought only minimal change to the overall partisan composition of the courts. At the end of President Bushs second term, 59.5% of all active federal judges were appointed by Republican presidents, including a majority of the Supreme Court, the courts of appeal, and the district courts. Two years later, because of the glacial pace of judicial confirmations, approximately 57.6% of all active federal judges remained Republican-appointed, only 1.9% less.16 Had the 43 nominees returned to President Obama at the end of the 111th Congress been confirmed, the difference would have been 4.9%. President Obama made more of an impact on the federal Halfway through President appellate courts, but he made no dent in the makeup of Obamas term, 57.6% federal district courts. For instance, at the end of the Bush of all active federal judges Administration, 10 of the 13 courts of appeals had Republican-appointed majorities, 1 had a Democraticwere appointed by appointed majority, and 2 were evenly divided. Over the Republican presidents. 111th Congress, Obama judges reduced the number of Republican-majority appellate courts to 7 of 13, increased the number of Democratic-majority appellate courts to 4, and kept the number of evenly-divided circuits at 2. The overall percentage of circuit court nominees appointed by Democratic presidents increased from 38.4% to 45.1%. However, the percentage of district court seats held by Democratic nominees remained stagnant at 41.6%, compared to 41.4% two years earlier. President Obama also altered the Supreme Court, nominating and obtaining confirmation of Justices Sotomayor and Kagan, age 56 and 50, respectively, to replace Justices Souter and Stevens, both of whom were nominated by Republican presidents.
Nominating-Party Composition of the Courts
Party
Supreme Court
Courts of Appeals
Percentage Courts of Appeals
District Courts
Percentage of District Courts
Total Judges
Percentage of Total Judges
End of 111th Congress DemocratAppointed RepublicanAppointed
73
45.1%
248
41.6%
325
42.4%
89
54.9%
348
58.4%
442
57.6%
End of Bush Administration DemocratAppointed RepublicanAppointed
63
38.4%
261
41.4%
326
40.5%
101
61.6%
370
58.6%
478
59.5%
Circuit Courts of Appeals Breakdown by Appointing Presidents Party

Circuit D.C. First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Federal Partisan Control Republican Even Democratic Democratic Democratic Republican Republican Republican Republican Democratic Republican Republican Even 7 Republican 4 Democratic 2 Evenly Split 179 90 73 16 Total Seats 11 6 13 14 15 17 16 11 11 29 12 12 12 RepublicanNominated 6 3 5 6 5 11 10 7 9 10 7 6 5 DemocratNominated 3 3 6 8 9 4 5 3 2 16 4 5 5 Vacancies 2 0 2 0 1 2 1 1 0 3 1 1 2
Total
10
B. Number and Pace of Obama Nominations Over his first two years, President Obama made 103 nominations to the circuit and district courts, and two nominations to the Supreme Court. By comparison, both Presidents Bush and Clinton made more nominations in their first two years.
Nominations at End of First Congress
150
125
100
75
CCA DCT Total
50
25
0 Carter Reagan Bush I Clinton Bush II Obama
Carter Courts of Appeals District Courts Total 13 49 62
Reagan 20 69 89
Bush I 23 50 73
Clinton 22 118 140
Bush II 32 98 130
Obama 25 78 103
11
Another factor to consider is the ratio of nominations made to available vacancies, including future vacancies. Future vacancies are those for which a judge has notified the President that he or she will leave active service on a specified, upcoming date. The chart on the next page demonstrates that President Obama left open 5 more available seats than President Clinton and 9 more available seats than President Bush, and that his ratio of filled to available slots was the lowest of the last three presidents. We have included future vacancies in this chart because nominations are made for these slots.
Nominations and Aggregate Vacancies
220 200 180 160 140 120
Nominations
100 80 60 40 20 0
Vacancies
Clinton
Bush II
Obama
Clinton Nominees Aggregate Vacancies Percent Nominated 140 204 68.6%
Bush II 130 190 68.4%
Obama 103 172 59.8%
12
We have already noted that President Obamas nominations started slowly, thereby costing him precious Senate time to move his nominations.17 The chart below demonstrates this more graphically. This can be seen by the lines at the bottom of the chart for new nominations and confirmations. Without enough nominees to process early on, confirmations were significantly delayed. The chart also demonstrates Republican obstruction, as one would expect the vacancies line across the top to start dropping once significant numbers of nominees were in the pipeline. That did not happen. Instead, pending nominees rose above 40 and stayed there to then end, when 43 nominees were returned to the President. Had Republicans been willing to grant votes to those nominees, the number of vacancies and judicial emergencies that we discuss in the next section would have come down significantly.
Vacancy-Nominee Trends During the 111th Congress
120
100 Article III Vacancies 80 Vacancies w ith No Nominees Pending Nominees New Nominations Confirmations 20
60
40
0 Mar-09 May-09 Mar-10 Jan-09 Jan-10 May-10 Nov-09 Nov-10 Sep-09 Sep-10 Jan-11 Jul-09 Jul-10
13
Vacancy-Nominee Trends During the 111th Congress
Current Article III Vacancies 1/20/2009 3/1/2009 5/1/2009 7/1/2009 9/1/2009 11/1/2009 1/1/2010 3/1/2010 5/1/2010 7/1/2010 9/1/2010 11/1/2010 1/5/2011 55 65 69 80 93 97 101 104 104 100 105 104 97
Vacancies with No Nominees 55 65 66 73 77 79 81 73 60 60 66 57 54
Pending Nominees 0 0 3 7 16 18 20 31 44 40 39 47 43
New Nominations 0 0 3 4 9 6 10 14 18 11 4 9 14
Confirmations 0 0 0 0 0 4 8 3 5 15 5 1 19
14
C. Vacancies and Judicial Emergencies The number of judicial vacancies almost doubled during the first two years of Obamas presidency, rising from 55 to 97. Nearly all of the increase was in district court vacancies.
District and Circuit Court Vacancies
120
100
80
CCA
60
DCT Total
40
20
0 Jan-09
May-09
Sep-09
Jan-10
May-10
Sep-10
Jan-11
1/20/09 Courts of Appeals District Courts Total 13 42 55
5/1/09 15 54 69
9/1/09 21 72 93
1/1/10 20 81 101
5/1/10 16 88 104
9/1/10 20 84 104
1/5/11 16 81 97
15
This was in sharp contrast to the first two years of the Bush and Clinton presidencies, during which vacancies ultimately fell well below where they started.
100 70 40 January, Year 1 January, Year 2 January, Year 3
Obama Vacancies
120 80 40 January, Year 1 Peak (10/17/01) January, Year 3 Bush Vacancies
150 125 100 75 50 January, Year 1 Peak (11/26/93) January, Year 3 Clinton Vacancies
Obama January, Year 1 January, Year 2 January, Year 3
Vacancies 55 93 97
Bush January, Year 1 Peak (10/17/01) January, Year 3
Vacancies 80 110 59
Clinton January, Year 1 Peak (11/26/93) January, Year 3
Vacancies 107 127 68
16
The increased number of vacancies caused the number of seats considered to be judicial emergencies to more than double during President Obamas first two years, from 20 to 46.
Judicial Emergencies During the 111th Congress
60
50
40
30
20
10
0 1/20/09 5/1/09 9/1/09 1/1/10 5/1/10 9/1/10 1/5/11
1/20/09 20
5/1/09 23
9/1/09 28
1/1/10 33
5/1/10 40
9/1/10 49
1/5/11 46
The judicial emergencies at the end of the 111th Congress were geographically dispersed, and affected courts in 29 states.18 The judicial emergency situation was so dire that the Judicial Council of the Ninth Circuit, 19 Justice Anthony Kennedy,20 and Chief Justice John Roberts21 spoke publicly about the need to set partisanship aside and fill judicial vacancies. At an event in February, 2011, at the Brookings Institution, Judges Royce Lamberth, Chief Judge of the U.S. District Court for the District of Columbia, and W. Royal Furgeson, Jr., Senior Judge in the Western District of Texas, discussed how the 17
vacancy crisis affected their courts. Judge Lamberth explained that his court is swamped with Guantanamo cases. [T]he result is we expect to try very few civil cases this spring or summer and only criminal case[s] where the Speedy Trial Act dictates trial now.22 Judge Furgeson told an even grimmer tale. When he started in Pecos, Texas in 1995, he handled 43 criminal cases. By 2000, he was handling 458 criminal cases.23 Last year, a senior judge in that district closed 150 civil cases and 793 criminal cases, or close to 8 times what a federal judge would handle in a normal situation.24 As a result, he thought judges were forced into an assembly line process for criminal defendants, and said it reminded him of night traffic court.25 He concluded by saying:
Committed, hardworking judges are being pushed beyond their endurance on the border. They soldier on but the costs are incalculable. Vacancies desperately need to be filled; new judges desperately need to be added. We owe that to our border judges. We owe that to our citizens. We owe that to our [C]onstitution. We owe that to the rule of law. And we [owe] it to the cause of justice.26
These effects were not limited to Texas or the District of Columbia. An Alliance for Justice report from November, 2010, noted that, depending on the circuit, judicial emergencies forced circuit court judges to handle an additional 95 to 276 filings per year, and district court judges to handle an additional 48 to 1,170 filings per year.27 The crisis also forced the Ninth Circuit to suspend speedy trial deadlines for district courts in Arizona.28 The crisis also hurt everyday Americans seeking justice. To cite just one example reported by the Salt Lake Tribune, a man who lost his 2-year-old daughter and suffered severe burns over 36% of his body after a faulty gas can exploded inside his trailer waited nearly five years to obtain compensation for his huge medical expenses and other injuries through the courts.29 Had Republicans been willing to solve this growing crisis in the courts, they could have agreed to take votes on 19 nominees who remained on the floor at the end of the 111th Congress, but they chose continued obstruction instead. Ten of these nominees would have filled seats listed as judicial emergencies. None of these nominees faced more than token opposition in committee. Yet Republicans blocked a vote on them and others by threatening to filibuster if any additional nominees were considered.
18
Pending Nominees Who Faced either No Opposition or Token Opposition in Committee

Nominated To Reported Out of Committee Judiciary Committee Vote Unanimous Voice Vote Unanimous Voice Vote 16-3 Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote Unanimous Voice Vote 16-3
Nominee
Nominated
Race
Gender
Amy Totenberg*
N.D. Ga.
3/17/2010
12/1/2010
Paul Holmes* Susan Carney*
W.D. Ark. 2nd Circuit
4/28/2010 5/20/2010
12/1/2010 12/1/2010
W W
M F
Edward Davila*
N.D. Cal.
5/20/2010
12/1/2010
Anthony Battaglia
S.D. Cal.
5/20/2010
12/1/2010
James Shadid*
C.D. Ill.
5/27/2010
12/1/2010
AsA
Max Cogburn
W.D.N.C.
5/27/2010
12/9/2010
James Graves*
5th Cir.
6/10/2010
12/1/2010
AfA
James Boasberg
D.C.D.C.
6/17/2010
12/1/2010
Sue Myerscough*
C.D. Ill.
6/18/2010
12/1/2010
Amy Jackson
D.C.D.C.
6/18/2010
12/1/2010
Diana Saldana*
S.D. Tx.
7/13/2010
12/1/2010
Marco Hernandez*
D. Or.
7/13/2010
12/9/2010
Steve Jones* Michael Simon
N.D. Ga. D. Or.
7/13/2010 7/13/2010
12/9/2010 12/9/2010
AfA W
M M
* judicial emergency 19
Another way to alleviate the caseloads of overworked judges would have been for the Senate adopt the recommendations of the Judicial Conference of the United States and pass the Federal Judgeship Act of 2009, and add 9 courts of appeals and 38 district court judgeships.30 Laws adding federal judgeships were enacted during each of the previous five presidents terms, though the judges added at the end of President Clintons term were all filled by President Bush. D. Confirmations Confirmations are the most critical measure of a presidents impact on the judiciary. Unfortunately for President Obama, as seen in the charts below, the Senate confirmed fewer of his district and circuit nominees than every president back to Jimmy Carter, and the lowest percentage of nominees 58% than any president in American history at this point in a Presidents first term.31 By comparison, Presidents George W. Bush, Clinton, George H.W. Bush, Reagan and Carter had 77%, 90%, 96%, 98%, and 97% of their nominees confirmed after two years, respectively.
Confirmations at End of First Congress
140 120 100 80 60 40 20 0 Carter Reagan Bush I Clinton Bush II Obama CCA DCT Total
Carter Courts of Appeals District Courts Total 13 47 60
Reagan 19 68 87
Bush I 22 48 70
Clinton 19 107 126
Bush II 17 83 100
Obama 16 44 60
20
Percentage Confirmed at End of First Congress

100%
80%
60% CCA DCT 40% Total
20%
0% Carter Reagan Bush I Clinton Bush II Obama
Carter Courts of Appeals District Courts Total 100% 96% 97%
Reagan 95% 99% 98%
Bush I 96% 96% 96%
Clinton 86% 91% 90%
Bush II 53% 85% 77%
Obama 64% 56% 58%
21
III. President Obamas Judicial Nominees

President Obamas judicial nominations have differed from those of his predecessors in several respects. First, President Obama clearly sought to improve judicial diversity by nominating an unprecedented percentage of women and minorities to the bench, many of them historic firsts. Second, there was less obvious ideological tenor to his nominations compared with Republican presidents, who have routinely nominated prominent conservatives. President Obama, with a few exceptions, was less aggressive in nominating high-profile civil rights attorneys, public interest leaders, or leading progressive scholars to the bench. Third, President Obamas nominees have been older than any of his last five predecessors. A. Diversity
Gender and Racial Diversity
Gender and racial diversity were hallmarks of President Obamas circuit and district court nominees. Indeed, the following chart shows the dramatic increase in the diversity of President Obamas nominees compared with the nominees of the past five presidents. Almost 45% of Obamas nominees were women and 41% were people of color, far outpacing his predecessors. Notably, Asian Americans comprised almost 8% of Obamas nominees, compared to fewer than 1.4% of past presidents nominees. Many of President Obamas nominees represented historic firsts on their courts. Notably, Justice Sonia Sotomayor is the first person of Hispanic descent to serve on the Supreme Court. Similarly, Judge Denny Chin is the first Asian American to serve on the Second Circuit Court of Appeals, which has jurisdiction over New York, Connecticut, and Vermont. Judge Rogeriee Thompson is the first African American to serve on the First Circuit Court of Appeals, which covers Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Barbara Keenan is the first woman from Virginia to serve on the Fourth Circuit Court of Appeals, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
22
Circuit Courts of Appeals and District Court Judges by Gender and Ethnicity
President/ Term Obama 60 confirmed Obama 43 pending Obama 103 total Bush II (2001-08) confirmed Clinton (1993-00) confirmed Bush I (1989-92) confirmed Reagan (1981-88) confirmed Carter (1977-80) confirmed 322 250 (77.6%) 71 (22.0%) 265 (82.2%) 23 (7.1%) 29 (9.0%) 4 (1.2%) 0 0 Total Male 30 (50%) Female 30 (50%) White 34 (56.7%) African American 16 (26.7%) Hispanic 4 (6.7%) Asian American 6 (10%) Native American Arab American
27 (62.7%)
16 (37.2%)
27 (62.7%)
6 (13.9%)
7 16.2%)
2 (4.6%)
1 (2.3%)
57 (55.3%)
46 (44.7%)
60 (58.3%)
22 (21.4%)
11 (10.4%)
8 (7.8%)
1 (1.0%)
372
263 (70.7%)
109 (29.3%)
280 (75.3%)
61 (16.4%)
25 (6.73%)
5 (1.3%)
1 (0.3%)
192
156 (81.3%)
36 (18.8%)
171 (89.1%)
13 (6.8%)
8 (4.2%)
376
345 (91.8%)
31 (8.2%)
353 (93.9%)
7 (1.9%)
14 (3.7%)
2 (0.5%)
259
219 (84.6%)
40 (15.4%)
202 (78.0%)
37 (14.3%)
16 (6.2%)
3 (1.2%)
1 (0.4%)
Moreover, many nominees who are still pending would, if confirmed, represent further progress in making the judiciary better reflect Americas diverse citizenry. For example, J. Paul Oetken and Edward Dumont would become the first openly gay federal district and circuit court judges, respectively, in history. Goodwin Liu would become the only Asian American to serve on the Ninth Circuit Court of Appeals, which has jurisdiction over every state touching the Pacific Ocean as well as Nevada, Arizona, Idaho, and Montana.
23
President Obama deserves immense credit here, but he did not do this alone. A number of minority bar associations and civil rights organizations worked tirelessly to help him find superb nominees.
Professional Diversity and Background
President Obamas nominees have tended to come from similar backgrounds, with most having served in private practice, as judges, or as prosecutors prior to their nominations, while fewer worked as public defenders, legal-aid attorneys, nongovernmental public interest attorneys, or academics. This is true both for nominees to courts of appeals and district courts. Prosecutors were much more likely to be nominated than public defenders. Fortytwo of Obamas nominees were prosecutors prior to their nomination including 10 of his circuit court and 32 of his district court nominees, while only 17 nominees 2 circuit court and 15 district court were public defenders. Lawyers from private practice, and especially large law firms, were much more likely to be nominated than legal aid attorneys who represented indigent clients. Ninety-five of President Obamas nominees served in private practice at some point prior to their nominations, compared to the 6 nominees who were legal aid attorneys. Lawyers with prior judicial service comprised more than half of all nominees, including 16 of 25 circuit court nominees and 44 of 78 district court nominees. Academics were much less likely to be nominated. Only 7 nominees 5 circuit court and 2 district court worked as tenured or tenure-track professors. Those with a non-governmental public interest background were the rarest of nominees, with only 1 who worked as a staff attorney for a public interest organization. These numbers are reflected in the following charts.
24
Circuit Court Nominee Experience

30
20
10
0 Private Practice Prosecutor Litigation and/or Policy State Judge Academia Legal Aid Attorney Public Defender Public Interest Attorney
Public Defender 2 Non-Govt. Public Interest Attorney 0
Private Practice 24
Federal District Judge 11
Govt. Civil Litigator and/or Policy Counsel 11
Federal Judge
Prosecutor 10
State Judge 7
Academia 5
Legal Aid Attorney 3
District Court Nominee Experience

80 60 40 20 0 Private Practice State Judge Prosecutor Federal Magistrate Litigation and/or Policy Academia Public Defender Legal Aid Attorney Public Interest Attorney
Academia 2 Non-Govt. Public Interest Attorney 1
Private Practice 71
Prosecutor 32
State Judge 27
Govt. Civil Lit. and/or Policy Counsel 24
Federal Magistrate 19
Public Defender 15
Legal Aid Attorney 3
25
Looking beyond the numbers, President Obama has an opportunity to nominate judges who will counterbalance the conservative views of the Constitution and the law that Republican presidents expect their nominees to implement. President Bush clearly tried to shape the law by nominating a bevy of controversial conservatives to the bench.32 The same was true of his Republican predecessors. President Bush also valued his nominees membership in the conservative Federalist Society. This early in his term, it is difficult to assess the overall impact on the state of the law that President Obamas nominees will have, but at first glance they do not appear to have been selected to become intellectual counterweights to the most conservative Republican appointees.
26
B. Age of Nominees
Republican presidents consistently appoint younger judges. By comparison, President Obamas circuit court judges were 3 to 5 years older on average than those of Presidents George W. Bush, George H.W. Bush, and Reagan, and his district court judges were 2 to 3 years older on average than for those presidents. Moreover, this age gap may increase as more of President Obamas nominees are confirmed, as the average age of pending nominees was 53.0 over a year older than for his confirmed nominees. While the differences in average age may seem small, the effects are not. With lifetime appointments secured, younger judges will likely have an opportunity to decide dozens or hundreds more cases than their older peers. The extra years on the bench may also help them build their reputations within the judiciary and legal academy, increasing their influence over the law. Additionally, younger judges have a greater likelihood of serving as nominees to higher courts.
Average Age of Confirmed Judges
55 54 53 52 51 CCA 50 49 48 47 46 45 Obama Bush II Clinton Bush I Reagan Carter DCT Overall
Obama Average Age of Confirmed Courts of Appeals Judges Average Age of Confirmed District Court Judges Overall Average Age 54.0
Bush II 49.6
Clinton 51.2
Bush I 48.7
Reagan 50
Carter 51.8
50.4 51.4
49.1 49.3
49.5 49.8
48.2 48.3
48.6 48.9
49.6 50.1
27
The final graph shows the distribution of all of President Obamas nominees by age.33 The data shows that the highest numbers of Obama nominees were between 52 and 59 years old.
Number of Nominees by Age at Nomination
11 10 9 8 7 6 5 4 3 2 1 0
39
41
43
45
47
49
51
53
55
57
59
61
Age of Nominee Number of Nominees
39 2
40 3
41 2
42 5
43 1
44 4
45 1
46 4
47 5
48 1
49 5
63
50 2
51 3
Age of Nominee Number of Nominees
52 6
53 10
54 7
55 9
56 6
57 7
58 10
59 6
60 3
61 2
62 0
63 1
28
C. Profiles of Appellate Court Nominees
We have included short profiles of President Obamas Supreme Court nominees, Sonia Sotomayor and Elena Kagan, and his 25 courts of appeals nominees, arranged alphabetically and by circuit.34
U.S. Supreme Court
Elena Kagan confirmed
Justice Kagan, age 50, is the fourth woman to sit on the Supreme Court. Prior to joining the Court, she was the Solicitor General of the United States and the former dean of Harvard Law School. Justice Kagan has an impressive academic and professional background. She graduated from Princeton University with honors, received her Master of Philosophy from Oxford, and obtained her J.D. with honors from Harvard, where she was the supervising editor of the Harvard Law Review. After law school, she clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit and for Supreme Court Justice Thurgood Marshall. She spent time in private practice as an associate at Williams & Connolly, LLP, but quickly moved to the academic field as a professor at the University of Chicago School of Law. While teaching at the University of Chicago, she took on a special assignment as senior counsel to then-Senator Joe Biden, who was chair of the Senate Judiciary Committee. Justice Kagan served as President Bill Clintons Associate White House Counsel, deputy assistant to the President for Domestic Policy, and deputy director of the Domestic Policy Council. President Clinton nominated her for a seat on the U.S. Court of Appeals for the D.C. Circuit, but the Senate Judiciary Committee never scheduled her hearing. She became a professor at Harvard Law School, and was subsequently named dean.
Sonia Sotomayor confirmed
Justice Sotomayor, age 56, is the first Hispanic American to serve on the Supreme Court. She was nominated by President George H.W. Bush to a district court judgeship in the Southern District of New York, becoming the first Hispanic American on that court. President Clinton nominated her to a seat on the Second Circuit, where she sat until joining the Supreme Court. She graduated from Princeton University summa cum laude and from Yale Law School, where she was an editor of the Yale Law Journal and managing editor of the Yale Studies in World Public Order. She was an assistant district attorney in Robert Morgenthaus New York County District Attorneys Office and then moved to the small New York law firm of Pavia & Harcourt. Justice Sotomayor was born in 1954 to parents from Puerto Rico, and was raised in the housing projects of the south Bronx. Her father was a factory worker who died 29
when she was nine years old. Justice Sotomayor saw her mother sacrifice and work six days a week to send her children to private school and to buy the only encyclopedia set in the neighborhood. Always aspiring to public service, Justice Sotomayor was an adjunct professor at New York University School of Law and a lecturer-in-law at Columbia Law School. She was on the board of the Puerto Rican Legal Defense and Education Fund for twelve years, and was appointed to the Board of the State of New York Mortgage Agency, tasked with helping low- and moderateincome families buy homes, as well as the New York City Campaign Finance Board, which provided public money for city campaigns, published voter guides, and ensured campaign finance disclosures. She was also a member of the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts.
First Circuit Court of Appeals
O. Rogeriee Thompson confirmed
Judge Thompson, age 59, is the first African American and the second woman on the First Circuit. Until her confirmation, she had served with distinction on the Rhode Island Superior Court since 1997. She grew up in South Carolina, where her greatgrandfather owned a plantation and bought her great-grandmother at a slave auction. They later fell in love and started a family. Thompson attended Pembroke College, the female college of Brown University, and graduated from Brown after the two schools merged. Following graduation from Boston University Law School, she returned to Rhode Island, first working as an attorney at Rhode Island Legal Services and later opening a law firm in South Providence. In 1988, she became the first African American woman on a Rhode Island district court.
Second Circuit Court of Appeals
Denny Chin confirmed
Judge Chin, age 57, is the only active Asian American federal appellate court judge in the United States. He was a district court judge in the Southern District of New York prior to his elevation to the Second Circuit. An immigrant from Hong Kong who moved to the United States when he was two years old, he grew up in New York Citys Hells Kitchen neighborhood, where his mother worked as a seamstress and his father as a cook in Chinese restaurants. He graduated magna cum laude from Princeton University and earned a J.D. from Fordham University School of Law. Before becoming a district court judge, he clerked for a federal judge, worked in private practice, and served as an Assistant U.S. Attorney. Judge Chin earned widespread praise for sentencing Bernard Madoff to 150 years in prison, the allowable maximum, for his fraudulent Ponzi investment scheme that cost investors of billions of dollars.35
30
Gerard Lynch confirmed
Prior to joining the Second Circuit, Judge Lynch, age 59, served as a district court judge for the Southern District of New York. Judge Lynch is widely considered to be an intellectual force. He received his B.A. from Columbia, where he was valedictorian, and his J.D. from Columbia Law, again graduating first in his class. He clerked for Judge Wilfred Feinberg on the U.S. Court of Appeals for the Second Circuit and Justice William Brennan on the Supreme Court. Judge Lynch spent many years teaching law at Columbia Law, where was also vice dean for five years. He also worked in the U.S. Attorneys Office for the Southern District of New York, first as assistant U.S. attorney where he prosecuted white-collar criminal cases and served as chief appellate attorney, and later as the Chief of its Criminal Division. He was an associate counsel in the Office of Independent Counsel during the Iran-Contra affair; Judge Lynch briefed and argued the prosecution in the appeal of Oliver North.
Raymond J. Lohier, Jr. confirmed
Raymond Lohier, Jr., age 44, a Haitian American born in Montreal, Canada, served as Special Counsel to the United States Attorney for the Southern District of New York before joining the Second Circuit. In that capacity, he gained extensive experience in representing the government in securities fraud, insider trading, Ponzi schemes, and commodities fraud. After immigrating to the United States, he received his A.B. in 1988 from Harvard College, cum laude, and his J.D. from New York University School of Law, where he was Editor in Chief of the Annual Survey of American Law and recipient of the Vanderbilt Medal. Mr. Lohier has had a broad range of legal experiences over his career, working in both private practice and for the government. He clerked on the Southern District of New York, practiced as an associate at Cleary, Gottleib, Steen & Hamilton in New York, served in the Civil Rights Division of the Department of Justice, and was an Assistant United States Attorney in the Southern District of New York.
Robert Chatigny nominated
Judge Chatigny, age 59, has been a District Court Judge for the District of Connecticut since 1994. From 2003 to 2009, he was the Courts Chief Judge. Judge Chatigny graduated from Brown University and Georgetown Law Center where he was Case & Note Editor of the Georgetown Law Journal. He clerked for three federal judges: Judge Conti in the Northern District of California, Judge Cabranes in the District of Connecticut, and Judge Newman in the Second Circuit. He also spent many years in private practice, and founded two law firms. He was the only one of 43 nominees returned at the end of the 111th Congress that President Obama has not renominated.
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Susan Carney nominated
Ms. Carney, age 59, has been Deputy General Counsel of Yale University since 2001. Ms. Carney graduated with an A.B., cum laude, from Radcliffe (Harvard College) in 1973 with a major in Russian History and Literature, and in 1977 she received a J.D., magna cum laude, from Harvard Law School. Ms. Carney clerked for Judge Levin Campbell on the United States Court of Appeals for the First Circuit. She worked at Rogovin, Huge and Lenzner in Washington, D.C., as an associate and as partner, where she primarily represented large, nonprofit organizations. She left Rogovin to form the Washington, D.C. office of Tuttle and Taylor. She also worked for the labor law firm Bredhoff and Kaiser, and served as Associate General Counsel of the Peace Corps.
Third Circuit Court of Appeals
Joseph A. Greenaway confirmed
Prior to joining the Third Circuit, where he filled the seat formerly occupied by Supreme Court Justice Samuel Alito, Judge Greenaway, age 54, was a district court judge for the District of New Jersey. Nominated at age 39, Judge Greenaway developed an extensive judicial record of approximately 850 opinions. He received his B.A. from Columbia College in 1978 and his J.D. from Harvard Law School in 1981, where he received the Earl Warren Legal Scholarship and was a member of the Harvard Law School Civil Rights and Civil Liberties Law Review. He was a litigation associate in New York City, a law clerk to Judge Vincent Broderick in the Southern District of New York, and an Assistant U.S. Attorney for the District of New Jersey, where he was promoted to Chief of the Narcotics Division. He left the U.S. Attorneys office to become general counsel of Johnson & Johnson, where he worked until joining the bench.
Thomas I. Vanaskie confirmed
Thomas I. Vanaskie, age 57, was a district court judge in the Middle District of Pennsylvania and served as the Districts Chief Judge until his confirmation to the Third Circuit. A lifelong Pennsylvanian, Judge Vanaskie graduated from Lycoming College in 1975 and from Dickinson School of Law in 1978. He clerked for Judge William Joseph Nealon Jr. in the Middle District of Pennsylvania, and worked in private practice in Scranton, Pennsylvania for two firms prior to joining the bench.
Fourth Circuit Court of Appeals
Alberto Diaz confirmed
Judge Diaz, age 50, is the first Hispanic American judge on the Fourth Circuit Court of Appeals. He was previously a Special Superior Court Judge for Complex Business 32
Cases in North Carolina. He earned a B.S. in Economics from the University of Pennsylvanias Wharton School, a J.D. from New York University, and an M.B.A. from Boston University. Judge Diaz began his legal career in the Marines, where he worked as a prosecutor and defense counsel, handling over 80 felony and misdemeanor cases, and became the Chief Review Officer. He later moved to the Navys JAG Office, serving four years as appellate counsel. Judge Diaz entered private practice in 1995, working at Hunton & Williams, where he received the firms E. Randolph Williams Award for public service, given to lawyers completing at least 100 pro bono hours in a calendar year.
Barbara Keenan confirmed
Justice Keenan, age 61, is the first woman from Virginia to sit on the Fourth Circuit. She also holds the distinction of being the only woman to have served on all levels of the Virginia court system, starting as a county prosecutor in Fairfax County, Virginia, becoming a judge of the General District Court of Fairfax County, and moving to the Circuit Court as the first woman to be elected to this position by the Virginia General Assembly. Thereafter, she was one of ten judges elected to the Court of Appeals of Virginia, becoming the first woman state appellate court judge in Virginia. In 1991 she was elected to the Supreme Court of Virginia. She received a B.A. from Cornell University, a J.D. from George Washington University School of Law, and an L.L.M. from the University of Virginia School of Law. She was also a partner in a private law firm.
Andre Davis confirmed
Judge Davis, age 61, was a federal district court judge in the District of Maryland prior to joining the Fourth Circuit. He received his B.A. from the University of Pennsylvania and received his J.D, cum laude, from the University of Maryland. Following law school he clerked for Judge Frank A. Kaufman in the District of Maryland, and for Judge Francis Murnaghan on the Fourth Circuit. He also handled appellate cases for the U.S. Department of Justice, Civil Rights Division, served as an Assistant United States Attorney for the District of Maryland, was in private practice, and was an assistant professor at the University of Maryland School of Law. Davis was previously nominated to the Fourth Circuit by President Clinton, and would have become the first African American federal appellate judge, but his nomination was blocked.
James Wynn confirmed
Judge Wynn, age 56, is the first African American from North Carolina to sit on the Fourth Circuit. President Clinton had previously nominated him to that court, but his nomination was blocked by Senator Jesse Helms. Judge Wynn was a state judge in North Carolina, including stints on North Carolina Court of Appeals and Supreme 33
Court. He also worked as an appellate public defender and in private practice. Judge Wynn is a certified Military Trial Judge and a Captain in the United States Navy Reserves, and he served on active duty in the U.S. Navy JAG Corps. He received a B.A. from the University of North Carolina at Chapel Hill, a J.D. from Marquette University Law School, and an LL.M. from the University of Virginia.
Fifth Circuit Court of Appeals
James Graves confirmed (112th Congress)
Judge Graves is the first African American from Mississippi to sit on the Fifth Circuit. Prior to joining the Fifth Circuit, Graves served as a judge in Mississippi on the Hinds County Circuit Court and the state Supreme Court, where he became the presiding justice. He was the only African American on the state Supreme Court. Justice Graves was born in Hinds County, Mississippi in 1953. He received a B.A. degree from Millsaps College, an M.P.A. in Public Administration from The Maxwell School of Citizenship and Public Affairs at Syracuse University, and a J.D. degree from Syracuse University School of Law. Justice Graves worked in private practice, was a staff attorney at Central Mississippi Legal Services, and held various positions in the Mississippi state government, including serving in the state Attorney Generals office. He has also taught at Tougaloo College, Millsaps College, and Jackson State University. Justice Graves has received numerous honors and awards, including the National Conference of Black Lawyers Judge of the Year award, and an honorary Doctor of Laws from Millsaps College.
Sixth Circuit Court of Appeals
Jane Barnstetter Stranch confirmed
Prior to joining the Sixth Circuit, Jane Stranch, age 57, was the managing partner of the Nashville law firm Branstetter, Stranch & Jennings PLLC. She worked primarily as a litigator for over 30 years where she gained extensive experience in labor and employment and securities law. Known as an ERISA-specialist, Ms. Stranch had a national practice representing pension funds and individuals in benefit claims and complex securities class action litigation. Ms. Stranch was among the first women admitted to the University of Virginia, and later she transferred to Vanderbilt University, where she obtained her B.A., summa cum laude. She graduated from Vanderbilt University Law School, Order of the Coif.
Bernice Donald nominated
Bernice Donald, age 60, is a district court judge in the Western District of Tennessee. She was the nations first female African American bankruptcy judge, and the first female African American judge in Tennessee history. She has been a federal judge for more than 20 years, and has almost 30 years of judicial experience. Judge Donald was 34
elected to her first judicial position in the criminal division of the Court of General Sessions in Shelby County. She was born in DeSoto County, Mississippi in 1951. She was one of the first students to integrate Olive Brach High School in the 1960s, and earned her B.A. from Memphis State University (now University of Memphis) and her J.D. from the Memphis State University Cecil B. Humphreys School of Law. Her legal career spans private practice, public service, and legal academia. She opened a private law practice in Memphis, taught at Shelby State Community College, became a staff attorney with the Memphis Area Legal Services, and an Assistant Public Defender with the Shelby County Public Defenders Office. She added a professorship at the University of Memphis School of Law, where she taught courses in legal research and professional responsibility.
Seventh Circuit Court of Appeals
David Hamilton confirmed
Prior to joining the Seventh Circuit, Judge Hamilton, age 53, was a district court judge in the Southern District of Indiana. His stellar record on the bench, in addition to his commitment to ensuring equal justice for all, made him a strong appellate court nominee. Nonetheless, his nomination stalled in the Senate for over eight months, and his confirmation required the Senates first judicial filibuster. Hamilton won that vote 70-29, and his confirmation by a vote of 59-39.36 Senator Lugar was the only Republican to vote to confirm him.
Victoria Nourse nominated
Ms. Nourse, born 1958, is a professor of law at the University of Wisconsin Law School. She earned her B.A. from Stanford University, and her J.D. from the University of California, Berkley. She clerked for Judge Edward Weinfeld in the Southern District of New York, and worked as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in New York. She moved to Washington D.C. to become a Special Counsel to the United States Senate committee investigating the Iran-Contra Affair, then worked as an appellate attorney in the Department of Justices Civil Division, and as Counsel and Special Counsel to then-Senator Joseph Biden on the Senate Judiciary Committee. Professor Nourse has been a visiting professor at Georgetown Law Center, Emory University Law School, NYU School of Law, Yale Law School, and the University of Maryland School of Law.
Ninth Circuit Court of Appeals
Mary Murguia confirmed
Judge Murguia, age 50, is the first Hispanic woman from Arizona to sit on the Ninth Circuit. Prior to joining the Ninth Circuit, she was the first Hispanic woman on a district court in Arizona. The daughter of Mexican immigrants, Judge Murguia 35
attended Kansas City public schools before attending the University of Kansas, where she received a B.A., a B.S., and a J.D. After law school, Judge Murguia devoted her entire career to public service. She worked as an assistant district attorney in the Wyandotte County District Attorneys Office, an Assistant U.S. Attorney in the District of Arizona, Criminal Deputy Chief in charge of the Violent Crime Section in the District of Arizona, and Director of the Executive Office for U.S. Attorneys.
Goodwin Liu nominated
Professor Liu, age 40, is Associate Dean and Professor of Law at the University of California, Berkeley School of Law (Boalt Hall). If confirmed, Professor Liu would be the only active Asian American judge on the Ninth Circuit. An acclaimed scholar, teacher, and lawyer, Liu is widely considered one of the brightest legal minds of his generation. He was born in Augusta, Georgia, the son of Taiwanese immigrants who came to America to practice medicine in underserved areas. Professor Liu received his B.S., Phi Beta Kapa, from Stanford University, where he was co-president of the student body and the recipient of the Lloyd W. Dinkelspiel Award, the Universitys highest honor for outstanding service to undergraduate education. He received his M.A. from Oxford University as a Rhodes Scholar, and his law degree from Yale Law School, where he was an editor of the Yale Law Journal. He clerked for both Judge David S. Tatel on the D.C. Circuit Court of Appeals and Supreme Court Justice Ruth Bader Ginsburg. He also worked in private practice at OMelveny & Myers in Washington, D.C. Liu has remained committed to public service throughout his career. Before law school, he spent two years at the Corporation for National Service, helping to launch the AmeriCorps program. Liu also worked as a Senior Program Officer for Higher Education, where he led the agencys effort to build community service programs at colleges and universities nationwide. Between clerkships, Liu acted as a Special Assistant to the Deputy Secretary at the U.S. Department of Education, where he gave advice on a range of legal and policy issues, including the development of guidelines to help turn around low-performing schools. He has also distinguished himself in academia. Within five years of becoming an Assistant Professor of Law at Boalt Hall, Liu earned tenure and was appointed Associate Dean. An expert on constitutional law and education law and policy, Liu is one of the nations leading authorities on the subject of educational equity. His writings on school choice, school finance, and desegregation focus on the needs of Americas most disadvantaged students. His paper in the Yale Law Journal, Education, Equality, and National Citizenship, won the Education Law Associations inaugural Steven S. Goldberg Award for Distinguished Scholarship in Education Law. And his book, Keeping Faith with the Constitution, co-authored with Pamela Karlan and Christopher Schroeder, is widely regarded as an accessible and incisive analysis of constitutional law. Liu has 36
received the University of California, Berkeleys Distinguished Teaching Award, the universitys most prestigious award for teaching excellence.
Tenth Circuit Court of Appeals
Scott Matheson confirmed
Prior to joining the Tenth Circuit, Judge Matheson, born 1953, held the Hugh B. Brown Presidential Endowed Chair in Law at the University of Utahs S.J. Quinney School of Law, where he had previously served as Dean. A sixth-generation Utahn, he received an A.B., with distinction, from Stanford University, an M.A. from Oxford University, where he was a Rhodes Scholar, and a J.D. from Yale Law School, where he served as Note Editor of the Yale Law Journal. His father was the Governor of Utah from 1977 to 1985 and his brother currently represents the state in Congress. Matheson himself ran for Governor of Utah in 2004. He has worked as an associate at Williams & Connolly in Washington, D.C. He has also twice been a prosecutor, first as a Deputy County Attorney for Salt Lake County and then as the U.S. Attorney for the District of Utah. He has also been a visiting associate professor in the Frank Stanton Chair on the First Amendment at the John F. Kennedy School of Government at Harvard University, and a Public Policy Scholar at the Woodrow Wilson International Center for Scholars.
Eleventh Circuit Court of Appeals
Beverly Baldwin Martin confirmed
Prior to joining the Eleventh Circuit, Judge Martin, age 56, was a federal district court judge in the Northern District of Georgia. Judge Martin graduated from Stetson University and the University of Georgia Law School. She worked in private practice before becoming an assistant attorney general for the state of Georgia. She was also an Assistant U.S. Attorney focusing on drug conspiracy and firearms possession, and eventually became U.S. Attorney for the Middle District of Georgia.
Federal Circuit Court of Appeals
Kathleen OMalley confirmed
Prior to joining the Federal Circuit, Judge OMalley, age 54, was a district court judge for the Northern District of Ohio. She attended Kenyon College, earning an A.B., magna cum laude and Phi Beta Kappa. She received her J.D., Order of the Coif, from Case Western Reserve University School of Law, where she was a member of the Case Western Reserve Law Review and received the Edwin G. Halter Memorial Scholarship and the International Trial Lawyers Award. After law school she clerked for Judge Nathaniel R. Jones on the Sixth Circuit, and practiced at both Jones Day and Porter, Wright, Morris & Arthur, LLP, where she made partner. She then entered 37
government service, working for Ohio Attorney General Lee Fisher, first as Chief Counsel and then as First Assistant Attorney General and Chief of Staff. OMalley served on the Deans Advisory Board at Case Western Law School, where she also taught patent litigation.
Jimmie V. Reyna confirmed (112th Congress)
Mr. Reyna, age 58, currently is a partner and director at Williams, Mullin P.C., in Washington, D.C. until his confirmation to the Federal Circuit. Mr. Reyna is the first Hispanic American ever to serve on that court. He is a leading international trade attorney with significant experience in trade policy, business regulation, and compliance law. He was born in Tucumcari, Mexico while his parents were serving as Baptist missionaries, and grew up in Clovis, New Mexico. He received his B.A. from the University of Rochester, and his J.D. from the University of New Mexico. He and his wife Dolores Ramirez moved from New Mexico to Washington D.C. in the mid1980s in order to care for their autistic son. He currently serves on the Board of Directors for the Community Services for Autistic Adults and Children Foundation. He worked as an associate at a private firm in Albuquerque, and then started his own firm. He subsequently moved to Washington, D.C., where he joined a boutique international trade firm and became a partner.
Edward C. Dumont nominated
Edward C. Dumont, born 1961, was the first openly gay nominee for a federal judgeship in American history. He is a partner in the Litigation and Controversy Department and a member of the Appellate and Supreme Court Practice Group at WilmerHales Washington, D.C. office. He received his B.A. from Yale, summa cum laude, and his J.D. from Stanford. He clerked for Judge Richard Posner on the Seventh Circuit, received the Luce Scholarship from the Henry Luce Foundation, which allowed him to practice law in Thailand, and alternated his practice between private firms and the federal government. He has been an associate at Sullivan and Cromwell, an Associate Deputy Attorney General, and an Assistant Solicitor General at the Justice Department, where he argued 18 cases before the U.S. Supreme Court.
D.C. Circuit Court of Appeals
Caitlin Joan Halligan nominated
Caitlin Joan Halligan, age 44, is the General Counsel for the New York County District Attorneys Office. She has practiced extensively before the Supreme Court of the United States, the United States Courts of Appeals, and the state appellate courts in New York. Ms. Halligan received her A.B., cum laude, from Princeton University, and her J.D., magna cum laude, Order of the Coif, from Georgetown University, where she served as managing editor of the Georgetown Law Journal, received the John M. 38
Olin Law and Economics Fellowship, and was selected as a Public Interest Law Scholar. Ms. Halligan clerked for Judge Patricia M. Wald on the D.C. Circuit Court of Appeals, worked as an associate at Wiley, Rein & Fielding in Washington, D.C., and then clerked for Justice Stephen G. Breyer of the United States Supreme Court. She then worked in private practice before joining the Office of the New York State Attorney General, where she was the offices first Chief of the Internet Bureau, the First Deputy Solicitor General, and later Solicitor General of New York. The National Association of Attorneys General selected her to receive the Best Brief award five years running. She left to become a partner at Weil, Gotshal & Manges in New York, where she led the firms appellate practice until she returned to public service in her current role.
IV. Conclusion
President Obamas first two years were marked by unprecedented obstruction of his nominees, creating a judicial vacancy crisis that remains unsolved. On the positive side, his nominees were the most diverse in history, including the two women he added to the Supreme Court. Far more needs to be done, however, for President Obama to leave his imprint on the federal courts.
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Notes
1
In 1977, there were only 512 judgeships within the Supreme Court, courts of appeals, and district courts, compared with 855 when President Obama took office. We are not including the votes against Supreme Court nominees Sonia Sotomayor or Elena Kagan, both of whom received 6 votes against their nominations in committee. During the 111th Congress, Republicans held 7 seats in the Senate Judiciary Committee. Of the 79 nominees Republicans voted on in committee, only 14 received any votes against their nominations. Five received 7 votes in opposition, 2 received 6 votes against, 1 received 4 votes against, 4 received 3 votes against, and 2 received 1 vote against. The Administrative Office of the U.S. Courts defines a judicial emergency for circuit courts as any vacancy in a court of appeals where adjusted filings per panel are in excess of 700; any vacancy in existence more than 18 months where adjusted filings are between 500 to 700 per panel, and for district courts as any vacancy where weighted filings are in excess of 600 per judgeship; any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship; any court with more than one authorized judgeship and only one active judge. http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx. In the twelve months ending September 30, 2010, overall filings in the federal circuit and district courts increased by 4,750 over the previous twelve month period. http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/20 10/Ju dicialBusiness2010.pdf. At a February 28, 2011 event at the Brookings Institution entitled Breaking the Judicial Nominations and Confirmations Logjam, Judge W. Royal Furgeson, Jr. lamented the serious problem faced by district court judges in border regions, noting that processing of criminal defendants reminded him of the kind of assembly-line justice he observed as a young lawyer in night traffic court, although the sentences were much, much more severe. See http://www.brookings.edu/~/media/Files/events/2011/0228_judicial_logjam/20110228_jif_trans cript_one.pdf. at 13. See, e.g., Melinda Rogers, Work for Utahs federal judges piling up while D.C. stalls out, THE SALT LAKE TRIBUNE, Feb. 23, 2011, available at http://www.sltrib.com/sltrib/news/51291850-78/federal-utahcourt-judges.html.csp. Republican Senators used a number of tactics to obstruct and delay nominees. For example, they required every nominee to be held over to a second executive session of the Senate Judiciary Committee before receiving a vote. They frequently placed holds on all nominees on the floor, preventing votes on any of them unless Senate leaders invoked the time-consuming cloture process. They blocked all district court nominees, even though historically these receive less opposition. This was all done despite the fact that they seldom voted against nominees on the merits, either in committee or on the floor. President Obama did not make his first nomination until March 17, 2009, and his first confirmation was not achieved until September 17, 2009, more than 9 months into office. By November 2009, the President had made only 26 nominations. By contrast, President Bush had made 64 nominations at a similar point in his first term. Charlie Savage, Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away, N.Y. TIMES, Nov. 15, 2009, available at
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http://www.nytimes.com/2009/11/15/us/politics/15judicial.html. See also ALLIANCE FOR JUSTICE, THE STATE OF THE JUDICIARY: THE OBAMA ADMINISTRATION 2009 5-12 (April 7, 2010) (providing data on President Obamas judicial nominations and confirmations in his first year), available at http://www.afj.org/check-the-facts/nominees/state-of-the-judiciary.pdf.
9
The judicial nominations process can only handle so many nominees. Once a nomination is made, it must be processed by the Senate Judiciary Committee. Hearings on each nominee are held, after which the nominee is considered in an executive session. Senate Republicans demanded that every nominee be held over from the first executive session until a second one before being voted on. If the nominee receives a majority of votes in support, he or she will move to the Senate floor for consideration. By taking so long to fill the pipeline with judicial nominations, President Obama lost precious Judiciary Committee and floor time to move and confirm his nominations. Charlie Savage, Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away, N.Y. TIMES, Nov. 15, 2009, available at http://www.nytimes.com/2009/11/15/us/politics/15judicial.html. The first public statement we have found from President Obama that was critical of Republican obstruction and the pace of judicial nominations was made on July 27, 2010, after a meeting with Senator McConnell. The full text of his remarks is available at http://www.whitehouse.gov/thepress-office/remarks-president-after-bipartisan-leadership-meeting. Two months later, on September 30, 2010, President Obama signed a letter to Senators complaining about how the slow pace of confirmations was creating a judicial crisis in the courts. A copy of the letter is available at http://www.politico.com/static/PPM153_cc_093010.html. By comparison, President Bush made at least 8 statements in his first two years that criticized the Senate for not moving his judicial nominees. http://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/archive.html. Given Democratic losses in the Senate during the 2010 midterm elections, President Obama will have a harder time moving judges in states where a Republican replaced one of two Democratic Senators, because the new Republican Senator may delay or decline to return a blue slip on in-state nominees that signals clearance for Judiciary Committee consideration. Those states include: Arkansas, Illinois, Indiana, North Dakota, Pennsylvania, and Wisconsin. See http://judiciary.senate.gov/nominations/judicial.cfm. A secret hold is a procedural device that Senators can use to anonymously block a unanimous consent agreement by having a colleague object to a consent agreement on their behalf. In a welcome development, at the beginning of the 112th Congress the Senate voted to ban the use of secret holds. Senators can still place public holds on nominees. Carl Hulse, No Reveling for Democrats, Despite Achievements, N.Y. TIMES, Aug. 14, 2010, available at
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11
12
13
14
http://www.nytimes.com/2010/08/15/us/politics/15memo.html?_r=2&scp=5&sq=mitch%20mcco nnell&st=cse.
15
See 41 Senate Republicans Send Letter To President Obama Urging Consultation On Judicial Nominees
Mar. 2, 2009, available at http://republican.senate.gov/public/index.cfm?FuseAction=Blogs.View &Blog_Id=3c522434-76e5-448e-9ead-1ec214b881ac.

16
One reason for the small percentage change is that a majority of the judges who have retired or taken senior status in the last two years were appointed by a Democratic president. See supra note 7.
17
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18
The 29 states are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Louisiana, Maryland, Mississippi, Montana, Nevada, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, and Wisconsin.
Letter to Sens. Reid and McConnell, Nov. 15, 2010, available at http://legaltimes.typepad.com/files/111510-letterfrom-9th-circuit.pdf.
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Carol J. Williams, Legal logjam leaving judges' seats empty in federal courts, L.A. TIMES, Aug. 30, 2010, available at http://articles.latimes.com/print/2010/aug/30/nation/la-na-judicial-logjam20100831. JUSTICE JOHN ROBERTS, 2010 YEAR-END REPORT ON THE FEDERAL JUDICIARY, Dec. 31, 2010, available at http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf. See supra note 5 at 13. Id. at 15. Id. at 17. Id. at 16. Id. at 18. ALLIANCE FOR JUSTICE, JUDICIAL EMERGENCIES REPORT, Nov. 23, 2010, available at http://www.afj.org/judicial-selection/afj-judicial-emergencies-report.pdf. See http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/judcon.pdf. See supra note 6. Federal Judgeship Act of 2009, S. 1653, 111th Cong. (1st Sess. 2009). See supra note 3. Some of the controversial conservatives nominated by President Bush included: Dennis Shedd, Fourth Circuit, Priscilla Owen, Fifth Circuit, Jeffrey Sutton, Sixth Circuit, Dianne Sykes, Seventh Circuit, Jay Bybee, Ninth Circuit, Jerome A. Holmes, Tenth Circuit, William Pryor, Eleventh Circuit, and Janice Rogers Brown, D.C. Circuit. See ALLIANCE FOR JUSTICE, JUDICIAL SELECTION DURING THE BUSH Administration 46-53 (Mar. 28, 2007) (discussing controversy around Bush nominees). The data includes exact birthdates for thirty-one nominees, and the exact birth years for the remaining fifty-four nominees. For the nominees where only a birth year is available, we calculated their age at nomination date by subtracting their birth year from their nomination year. This may produce some minor error in the data. While not ideal, this is as accurate an analysis as can be made at the moment with publicly available information. More detailed reports on President Obamas Supreme Court nominees and each of his courts of appeals nominees are available from the Alliance for Justice at http://www.afj.org/judicial-selection/. See, e.g., Larry Neumaster and Devlin Barrett, Denny Chin, Judge In Bernie Madoff Trial, To Be Nominated To Appeals Court, THE HUFFINGTON POST, Sept. 9, 2009, http://www.huffingtonpost.com/2009/09/09/denny-chin-judge-in-berni_n_281412.html. http://judiciary.senate.gov/nominations/111thCongress.cfm.
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State of The Judiciary After 111th Congress

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State of The Judiciary After 111th Congress

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THE STATE OF THE JUDICIARY

President Obama and the 111th Congress

Alliance for Justice

About Alliance for Justice

2011 Alliance for Justice

II. Republican Obstructionism Created a Judicial Vacancy Crisis

Nominating-Party Composition of the Courts

Percentage Courts of Appeals

Percentage of District Courts

Percentage of Total Judges

End of 111th Congress DemocratAppointed RepublicanAppointed

End of Bush Administration DemocratAppointed RepublicanAppointed

Circuit Courts of Appeals Breakdown by Appointing Presidents Party

CCA DCT Total

0 Carter Reagan Bush I Clinton Bush II Obama

Carter Courts of Appeals District Courts Total 13 49 62

Clinton 22 118 140

Clinton Nominees Aggregate Vacancies Percent Nominated 140 204 68.6%

Bush II 130 190 68.4%

Obama 103 172 59.8%

Vacancy-Nominee Trends During the 111th Congress

Vacancies with No Nominees 55 65 66 73 77 79 81 73 60 60 66 57 54

1/20/09 Courts of Appeals District Courts Total 13 42 55

120 80 40 January, Year 1 Peak (10/17/01) January, Year 3 Bush Vacancies

Obama January, Year 1 January, Year 2 January, Year 3

Bush January, Year 1 Peak (10/17/01) January, Year 3

Clinton January, Year 1 Peak (11/26/93) January, Year 3

Vacancies 107 127 68

0 1/20/09 5/1/09 9/1/09 1/1/10 5/1/10 9/1/10 1/5/11

Pending Nominees Who Faced either No Opposition or Token Opposition in Committee

Paul Holmes* Susan Carney*

W.D. Ark. 2nd Circuit

Steve Jones* Michael Simon

N.D. Ga. D. Or.

Carter Courts of Appeals District Courts Total 13 47 60

Clinton 19 107 126

Percentage Confirmed at End of First Congress

60% CCA DCT 40% Total

0% Carter Reagan Bush I Clinton Bush II Obama

Carter Courts of Appeals District Courts Total 100% 96% 97%

Reagan 95% 99% 98%

Bush I 96% 96% 96%

Clinton 86% 91% 90%

Bush II 53% 85% 77%

Obama 64% 56% 58%

III. President Obamas Judicial Nominees

Circuit Court Nominee Experience

Federal District Judge 11

Govt. Civil Litigator and/or Policy Counsel 11

Legal Aid Attorney 3

District Court Nominee Experience

Govt. Civil Lit. and/or Policy Counsel 24

Legal Aid Attorney 3

Age of Nominee Number of Nominees

Age of Nominee Number of Nominees

C. Profiles of Appellate Court Nominees

Elena Kagan confirmed

O. Rogeriee Thompson confirmed

Denny Chin confirmed

Gerard Lynch confirmed

Susan Carney nominated

Joseph A. Greenaway confirmed