President Barack Obama has appointed more judges to the federal bench than his Republican predecessor, shifting the center of gravity on the judiciary to the left. Though the nation’s highest court still has a conservative majority, a majority of appointees on the federal district and circuit courts are now Democratic appointees.
Alliance for Justice, a liberal legal group, released a report Monday showing that 53.5% of the judges on circuit courts were appointed by Democrats, compared to 38.7% when Obama took office. District courts have shifted as well, at the beginning of Obama’s first term 41.4% of the appointees were appointed by Democrats, compared to 52.9% now. The numbers were similar for Republicans at the same point in George W. Bush’s presidency, but at the end of October 2013, the composition of the federal courts was basically even.
Federal judges can exercise influence over American law for years after the administration in which they’re appointed, protecting a former president’s legacy or blocking a future president’s agenda. It’s significant then, that Obama’s judges tend to be older on average than previous presidents. The average age of Obama’s nominees is 51.2, compared to 49.3 for Bush.
The process has been aided substantially by the Senate’s abolition of the filibuster last December.
In the last month alone, the Senate has confirmed 22 judicial nominees. Although Republicans have continued to use procedural maneuvers and Senate rules to slow down the confirmation rules or quietly block nominees, without the 60-vote threshold for a confirmation vote judges have had a much easier time getting confirmed. The result, the report concludes, is that the number of judicial vacancies is down to 67, and the number of judicial emergencies – meaning the judges are facing an excessive caseload – is down to 25 from 36.
Obama’s nominees are the most diverse slate ever appointed. Forty-two percent of Obama’s nominees have been women, 37% have been people of color. Obama has appointed eight openly gay judges to the federal bench, prior to his administration only one had been appointed. Of Obama’s pending nominees, half are women and more than 30% are black. The report also states that Obama’s nominees have grown more professionally diverse, with more candidates being chosen who have backgrounds as public defenders.
Despite the loss of the filibuster, Republicans still have a number of options for blocking nominees, such as prolonging debate so that each nominee takes hours to confirm. The most obscure is the blue-slip process, a Senate tradition in which home state Senators can quietly scuttle a nomination by refusing to turn in a blue slip given to them by the chair of the Senate Judiciary Committee, Vermont Democratic Senator Patrick Leahy. The AFJ report calls for the abolition of the blue-slip process, Leahy has said he will only get rid of it if he sees it being abused.
In some cases, the report states, Republicans have refused to return blue slips for nominees they themselves have approved. Florida Republican Senator Marco Rubio famously withdrew his support for William Thomas, who would have been the first openly gay black man on the federal bench, North Carolina Republican Senator Richard Burr has not returned a blue slip for Jennifer May-Parker, whom Burr recommended in 2009.
The blue-slip is not quite as effective as the filibuster, but it has taken its toll. According to the report, “nine out of every 10 judicial vacancies without a nominee are in states with at least one Republican senator—and 55% are in states where both senators are Republicans.”