What is that creaking sound? Ah, yes. That’s the window starting to close on folks still hoping to put on those black robes before the Senate takes off for the holidays in December.
The good news is that, if you’re one of the nine nominees — seven for district judgeships, two for appeals courts — who have already reached the Senate floor, you’ve got a decent shot at confirmation before the Senate recess. That’s especially true for the seven who got unanimous votes in committee.
An additional 10 nominees have had hearings and are awaiting only a committee vote to get to the full Senate, which they should get by early next month. So they should be on the Senate floor in plenty of time.
The Senate Judiciary Committee, which usually takes up three or four district judgeships and one appellate judgeship at each hearing, may have time to approve as many as 27 more nominees to go to the Senate floor, for a total of 46.
But here’s where it gets tricky. Controversial nominees, meaning those approved by the committee largely with Democratic support, will have a very tough time getting through in the rush to adjourn.
And even those with substantial GOP support may have trouble getting pushed through in the Senate’s traditional end-of-year wrap-up in December.
That’s because the wrap-up tradition appears to have fallen victim to the increasingly bitter partisanship on the Hill. Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) has previously noted that the GOP left 17 noncontroversial judicial wannabes on the floor in 2010 and 18 in 2011. The nasty fights over the shutdown and the debt ceiling most likely haven’t done much to improve comity.
Meanwhile, a new report by the liberal Alliance for Justice finds that as of Sept. 25, President Obama, after an extraordinarily slow start, has moved way ahead of Bush II on nominations. Obama has made 271 nominations, vs. 240 for Bush at this point in his presidency.
But only 76 percent of Obama’s nominees have been confirmed, vs. 90 percent for Bush. As a result, Bush at this point had put 215 judges on the bench, while Obama has put on 203.
In the first term, Obama deftly improved on the Democrats’ policy of minimizing their impact on the federal judiciary by appointing the oldest judges ever, going back to the Carter administration, the report found. Obama’s confirmed appeals court judges are on average nearly four years older than Bush II’s and 4.7 years older than Bush I’s. (The average age of more recent nominees, however, is significantly lower.)
At this point, Democrats have edged ahead in the number of Democratic appointees on the 179-member U.S. courts of appeals, the report found. The percentage of Republican-appointed appeals court judges — 61.3 percent when President Bush left office, has dropped to 49.4 percent, the report found. Republicans maintain a thin lead of 50.3 percent of the nation’s 678 district court judges.