The federal judiciary in a post-nuclear world

The Supreme Court (Photo: REUTERS/Gary Cameron) The Supreme Court (Photo: REUTERS/Gary Cameron)

The Democrats may be seeing some temporary benefits from Senate Majority Leader Harry Reid’s November decision to go nuclear  and remove the Republicans’ ability to filibuster most nominees.

The Monday confirmation of Los Angeles lawyer  John Owens to the 9th U.S. Circuit Court of Appeals — the seat had been vacant for more than nine years — brought the total number of Obama picks donning the black robes for this first quarter to 19, including three appellate judges.

Compared to Obama’s first quarters in pre-nuclear years, that’s some progress. In the first three months of 2010, the Senate confirmed only six Obama judges, according to a count by the Alliance for Justice. The Senate confirmed 14 in that period in both 2011 and 2012 but then dropped down to only nine last year.

The Owens confirmation leaves 85 vacancies in the federal judiciary, including 15 on the important appeals courts. Obama has moved to fill 47 of those seats, with 25 of the nominees pending on the Senate floor and 22 awaiting Judiciary Committee action. (There are also 21 judges so far who said they are moving on within the next year.)

The Federal Judicial Center reports that President Obama has so far filled a total of 235  judgeships, 44 of them for appeals court slots. By way of comparison, President George W. Bush put a total of 324 people on the federal bench (62 0f them for appeals courts) and President Bill Clinton put the robes on 372 nominees (66 on appeals courts.)

If the Senate keeps up close to its current pace — maybe with an unexpectedly large flurry towards the end of this year — Obama might, after six years, get relatively close to Bush’s eight-year total. But the very strong possibility of the Senate switching to Republican control for Obama’s last two years, the number of judicial confirmations likely will stalemate or fall to a trickle at best, with perhaps only an occasional district court judge picked by bipartisan commissions getting through.

The real question is whether any Supreme Court retirees would be replaced with the GOP in charge. Should Justice Ruth Bader Ginsburg (who just turned 81) step down, it might be possible someone could be found. But if Justices Antonin Scalia (who just turned 78) or Anthony Kennedy (78 in July) step down, thereby threatening the court’s conservative majority, we could see an eight-justice high court for a while.

 

Al Kamen, an award-winning columnist on the national staff of The Washington Post, created the “In the Loop” column in 1993.

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