State of the Judiciary After 111th Congress

8/6/2019 State of the Judiciary After 111th Congress

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THE STATE OF THE JUDICIARY

President Obama and the 111th Congress

A report by

Alliance for Justice11 Dupont Circle NW, Second Floor

Washington, DC 20036 |www.afj.org
http://www.afj.org/http://www.afj.org/


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About Alliance for Just ice

Alliance for Justice is a national association of over 100 organizations, representing abroad 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 coreconstitutional values, preserves human rights and unfettered access to the courts, andadheres to the even-handed administration of justice for all Americans. It is the leadingexpert on the legal framework for nonprofit advocacy efforts, providing definitiveinformation, resources, and technical assistance that encourages organizations and their

funding partners to fully exercise their right to be active participants in the democraticprocess.

For more information on this report, contact AFJs Washington headquarters.

Alliance for Justice11 Dupont Circle NW, Second FloorWashington, DC 20036202.822.6070

All material within this report is protected by copyright law and may not be reproducedwithout the express written consent of Alliance for Justice.

2011 Alliance for Justice


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Contents

I. ................................................................................................................... 4IntroductionII. Republican Obstructionism Created a Judicial Vacancy Crisis................................. 7

A. Republican-Dominated Courts ............................................................................ 8B. Number and Pace of Obama Nominations.......................................................11C. Vacancies and Judicial Emergencies ............................................................... 15D. Confirmations ..................................................................................................... 20

III. President Obamas Judicial Nominees ................................................................... 22A. Diversity..............................................................................................................22

1. Gender and Racial Diversity ........................................................................222. Professional Diversity and Background....................................................... 24

B. Age of Nominees................................................................................................ 27C. Profiles of Appellate Court Nominees ............................................................... 29

IV. Conclusion ...............................................................................................................39


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The State of the Judiciary: President Obama and the 111th Congress

I . Int roduc t ionOne of the most important aspects of a presidents legacy is the nominations hemakes to the federal bench. A presidents other policies and programs, no matter howlaudatory, may be undone by subsequent administrations and Congresses. But federaljudges enjoy lifetime appointments, and dramatically shape the outcome of decisionson a host of issues that directly affect the lives of everyday Americans. Against thatbackdrop, President Barack Obama had a very uneven record with judicialnominations during the 111th Congress.

In terms of numbers, President Obama steadily lost ground toentrenched Republican obstruction in the U.S. Senate, ending his

first two years with almost double the number of vacancies that heinherited. Of the 105 nominations submitted by President Obamaduring the first two years of his term, only 62 2 Supreme Courtjustices, plus 16 courts of appeals and 44 district court judges wereconfirmed. That is the smallest percentage of judicial confirmationsover the first two years of any presidency in American history. It isalso the fewest number of confirmations since 1977, duringPresident Carters first two years in office, when the judiciary was 40% smaller.1 As aresult, President Obama barely altered Republican domination of the courts.

With so few judges

confirmed duringthe 111th Congress,

the federal judiciarywas pushed

into crisis.

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 DavidHamilton, William Martinez, and Benita Pearson. Four others who crossed thatthreshold Goodwin Liu, Edward Chen, Jack McConnell, and Louis Butler neverreceived votes on the floor.

With so few judges confirmed during the 111th Congress, the federal judiciary waspushed into crisis. Vacancies increased from 55 to 97 leaving nearly 1 in 8judgeships unfilled. Judicial emergencies3 more than doubled, from 20 to 46. Courtfilings also increased during this period.4 With fewer judges available to handlegrowing dockets, access to justice took a severe hit. One judge complained that thedearth of judges threatened assembly-line justice for criminal defendants, 5 while in

many districts civil cases were severely delayed.6

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For the most part, responsibility for the growing judicial crisis should be laid at thefeet of Senate Republicans, who embarked on a deliberate and unprecedented patternof blocking and delaying floor votes on every nominee, regardless of whether theyopposed the nominee in committee or on the floor.7 Another factor was PresidentObamas slow pace of nominations during his first year,8 thereby losing preciousSenate Judiciary Committee and floor time to confirm his nominees. 9 His statedreason for the slow pace that he wanted time to build support from home-statesenators10 did not translate into lessened overall opposition. Moreover, despite

Republicans obstruction, the President declined to publicly criticizeopponents the way President George W. Bush did.11 SenateDemocrats also played a role. Even though they held 59 or 60 seats,

Senate leaders held only two cloture votes i.e., votes needed to breakRepublican filibusters on judicial nominees during the 111thCongress. As a result, 43 nominees were returned to the President,including 19 nominees who were awaiting confirmation votes on theSenate floor.

President Obamaswindow ofopportunity toleave his mark onthe federal courts isclosing.

On the positive side, the confirmations of Sonia Sotomayor and Elena Kagan to theU.S. Supreme Court were historic. The Court now has three sitting female justices forthe first time in its history. Unprecedented gender and racial diversity also markedPresident 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 Americanhistory, and smaller numbers 62 confirmed during his first two years thanany president since Carter.

Judicial vacancies increased from 55 to 97 during President Obamas first twoyears, 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 anddelay President Obamas nominees, including placing secret holds on eachjudicial nominee who reached the Senate floor, even those that had thesupport of Republican home-state senators. They also denied votes on 13nominees at the end of the 111th Congress who received no Republicanopposition in committee.

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6

When President Obama took office, 59.5% of all federal judges had beenappointed 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 Americanhistory. He nominated Sonia Sotomayor and Elena Kagan to the SupremeCourt. In lower courts, 41% of his nominees were people of color and 45% were female, doubling the rate of women appointed in the BushAdministration.

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 partisanatmosphere in Congress, the Presidents window of opportunity to leave his mark onthe federal courts during this term is closing, lending a sense of urgency to the currentdebate over nominees. The 2010 midterm elections resulted in fewer Democrats inthe Senate.12 Moreover, fewer nominees are typically confirmed during presidentialelection years than in other years, as the party which does not hold the presidencyseeks 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 informalagreement of greater comity and banning the use of secret holds. 13 It remains to beseen whether the judicial nominations process will benefit from this effort. ManySenators have pushed for a return to regular order on judicial nominees, wherebythe body would vote on nominees on a regularized basis, and this has been takingplace. Nonetheless, the backlog of vacancies and judicial emergencies remainsalarmingly high.


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I I . Republic an Obst ruc t ionism Created aJudic ia l Vac ancy Crisis

During the 111th Congress, Republicans implemented a strategy to obstruct PresidentObamas judicial nominations, thereby maintaining the Republican dominance of thecourts. This was no secret, as Republican Minority Leader Mitch McConnell (R-KY)brazenly told the New York Times that I am amused with [Democrats] commentsabout obstructionism. . . . I wish we had been able to obstruct more.14 The resultwas to create a judicial vacancy crisis that burdens the judiciary and delays justice foreveryday Americans.

Senate Republicans announced their plan at the very

beginning of Barack Obamas presidency. OnMarch 2, 2009, six weeks after he took office, all theRepublicans in the Senate signed a letter effectivelyappropriating to themselves the nominating power ofthe executive branch by vowing to block nomineeswhom they did not approve.15

Republicans not only blocked judicial nominees, theyalso blocked a key person who vets nominees for theObama 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.

I am amused with[Democrats] commentsabout obstructionism...I wish we had been able toobstruct more.

Senate Minority LeaderMitch McConnell (R-KY)

Republican obstructionism had a significant, deleterious effect on the pace andnumber of judicial confirmations during the 111th Congress. Since the Senate operateslargely on the basis of unanimous consent agreements whereby legislative actiontakes place only when no Senator objects to that action a single Senator wishing tohalt the flow of governance can stop the process by either objecting to a consentrequest in person or through a secret hold. This requires time-consuming cloture votes to overcome. Historically, cloture votes have only been necessary for highlycontroversial nominees to courts of appeals. Instead, Republicans repeatedly deniedconsent on almost every nomination, including those for district court seats, andregardless of whether the nominee faced opposition in the Judiciary Committee. Thesame held true for nominees to seats that were judicial emergencies.

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A. Republic an-Dominat ed Courts

The first two years of the Obama Administration brought only minimal change to theoverall partisan composition of the courts. At the end of President Bushs secondterm, 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 districtcourts. Two years later, because of the glacial pace of judicial confirmations,approximately 57.6% of all active federal judges remained Republican-appointed, only1.9% less.16 Had the 43 nominees returned to President Obama at the end of the111th Congress been confirmed, the difference would have been 4.9%.

President Obama made more of an impact on the federal

appellate courts, but he made no dent in the makeup offederal district courts. For instance, at the end of the Bush Administration, 10 of the 13 courts of appeals hadRepublican-appointed majorities, 1 had a Democratic-appointed majority, and 2 were evenly divided. Over the111th Congress, Obama judges reduced the number ofRepublican-majority appellate courts to 7 of 13, increasedthe number of Democratic-majority appellate courts to 4, and kept the number ofevenly-divided circuits at 2. The overall percentage of circuit court nomineesappointed by Democratic presidents increased from 38.4% to 45.1%. However, thepercentage of district court seats held by Democratic nominees remained stagnant at

41.6%, compared to 41.4% two years earlier.

Halfway through PresidentObamas term, 57.6%of all active federal judges

were appointed byRepublican presidents.

President Obama also altered the Supreme Court, nominating and obtainingconfirmation of Justices Sotomayor and Kagan, age 56 and 50, respectively, to replace Justices Souter and Stevens, both of whom were nominated by Republicanpresidents.

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Nominat ing-Party Composit ion of the Courts

PartySupreme

Court

Courtsof

Appeals

PercentageCourts ofAppeals

DistrictCourts

Percentageof DistrictCourts

TotalJudges

Percentageof TotalJudges

End of 111th

Congress

Democrat-Appointed 4 73 45.1% 248 41.6% 325 42.4%

Republican-Appointed 5 89 54.9% 348 58.4% 442 57.6%

End of Bush Administration

Democrat-Appointed 2 63 38.4% 261 41.4% 326 40.5%

Republican-Appointed 7 101 61.6% 370 58.6% 478 59.5%

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Circuit Courts of Appeals Breakdow n by Appointing Presidents Party

Circuit Partisan ControlTotalSeats

Republican-Nominated

Democrat-Nominated Vacancies

D.C. Republican 11 6 3 2

First Even 6 3 3 0

Second Democratic 13 5 6 2

Third Democratic 14 6 8 0

Fourth Democratic 15 5 9 1

Fifth Republican 17 11 4 2

Sixth Republican 16 10 5 1

Seventh Republican 11 7 3 1

Eighth Republican 11 9 2 0

Ninth Democratic 29 10 16 3

Tenth Republican 12 7 4 1

Eleventh Republican 12 6 5 1

Federal Even 12 5 5 2

Total7 Republican

4 Democratic

2 Evenly Split

179 90 73 16

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B. Number and Pace of Obama Nominations

Over his first two years, President Obama made 103 nominations to the circuit anddistrict courts, and two nominations to the Supreme Court. By comparison, bothPresidents Bush and Clinton made more nominations in their first two years.

Nominations at End of First Congress

0

25

50

75

100

125

150

Carter Reagan Bush I Clinton Bush II Obama

CCA

DCT

Total


Courts of Appeals 13 20 23 22 32 25

District Courts 49 69 50 118 98 78

Total 62 89 73 140 130 103

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Another factor to consider is the ratio of nominations made to available vacancies,including future vacancies. Future vacancies are those for which a judge hasnotified the President that he or she will leave active service on a specified, upcomingdate. The chart on the next page demonstrates that President Obama left open 5more available seats than President Clinton and 9 more available seats than PresidentBush, and that his ratio of filled to available slots was the lowest of the last threepresidents. We have included future vacancies in this chart because nominations aremade for these slots.

Nominations and Aggregate Vacancies

0

20

40

60

80

100

120

140

160

180

200

220

Clinton Bush II Obama

Nominations

Vacancies

Clinton Bush II Obama

Nominees 140 130 103

Aggregate Vacancies 204 190 172

Percent Nominated 68.6% 68.4% 59.8%

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We have already noted that President Obamas nominations started slowly, therebycosting him precious Senate time to move his nominations. 17 The chart belowdemonstrates this more graphically. This can be seen by the lines at the bottom of thechart for new nominations and confirmations. Without enough nominees to processearly on, confirmations were significantly delayed.

The chart also demonstrates Republican obstruction, as one would expect thevacancies line across the top to start dropping once significant numbers of nomineeswere in the pipeline. That did not happen. Instead, pending nominees rose above 40and stayed there to then end, when 43 nominees were returned to the President. HadRepublicans been willing to grant votes to those nominees, the number of vacanciesand judicial emergencies that we discuss in the next section would have come downsignificantly.

Vacancy-Nominee Trends During the 111th Congress

0

20

40

60

80

100

120

Jan-0

9

Mar-

09

May-0

9

Ju

l-09

Sep-0

9

Nov-0

9

Jan-1

0

Mar-

10

May-1

0

Ju

l-10

Sep-1

0

Nov-1

0

Jan-1

1

Article III

Vacancies

Vacancies w ith

No Nominees

Pending

Nominees

New

Nominations

Confirmations

13


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Vacanc y-Nominee Trends During the 111th

Congress

Current Article IIIVacancies

Vacancies withNo Nominees

PendingNominees

NewNominations Confirmations

1/20/2009 55 55 0 0 0

3/1/2009 65 65 0 0 0

5/1/2009 69 66 3 3 0

7/1/2009 80 73 7 4 0

9/1/2009 93 77 16 9 0

11/1/2009 97 79 18 6 4

1/1/2010 101 81 20 10 8

3/1/2010 104 73 31 14 3

5/1/2010 104 60 44 18 5

7/1/2010 100 60 40 11 15

9/1/2010 105 66 39 4 5

11/1/2010 104 57 47 9 1

1/5/2011 97 54 43 14 19

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C. Vacancies and J udicial Emergencies

The number of judicial vacancies almost doubled during the first two years ofObamas presidency, rising from 55 to 97. Nearly all of the increase was in districtcourt vacancies.

District and Circuit Court Vacancies

0

20

40

60

80

100

120

Jan-09 May-09 Sep-09 Jan-10 May-10 Sep-10 Jan-11

CCA

DCT

Total

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

Courts of Appeals 13 15 21 20 16 20 16

District Courts 42 54 72 81 88 84 81

Total 55 69 93 101 104 104 97

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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.

40

70

100

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

Obama Vacancies

40

80

120

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

Bush Vacancies

50

75100

125

150

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

Clinton Vacancies

Obama Vacancies Bush Vacancies Clinton Vacancies

January, Year 1 55 January, Year 1 80 January, Year 1 107

January, Year 2 93 Peak (10/17/01) 110 Peak (11/26/93) 127

January, Year 3 97 January, Year 3 59 January, Year 3 68

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The increased number of vacancies caused the number of seats considered to bejudicial emergencies to more than double during President Obamas first two years,from 20 to 46.

Judicial Emergencies During the 111th Congress

0

10

20

30

40

50

60

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

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

20 23 28 33 40 49 46

The judicial emergencies at the end of the 111th

Congress were geographicallydispersed, and affected courts in 29 states.18 The judicial emergency situation was sodire that the Judicial Council of the Ninth Circuit, 19 Justice Anthony Kennedy,20 andChief Justice John Roberts21 spoke publicly about the need to set partisanship asideand 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. RoyalFurgeson, Jr., Senior Judge in the Western District of Texas, discussed how the

17


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18

vacancy crisis affected their courts. Judge Lamberth explained that his court isswamped with Guantanamo cases. [T]he result is we expect to try very few civilcases this spring or summer and only criminal case[s] where the Speedy Trial Actdictates trial now.22 Judge Furgeson told an even grimmer tale. When he started inPecos, Texas in 1995, he handled 43 criminal cases. By 2000, he was handling 458criminal cases.23 Last year, a senior judge in that district closed 150 civil cases and 793criminal cases, or close to 8 times what a federal judge would handle in a normalsituation.24 As a result, he thought judges were forced into an assembly line processfor criminal defendants, and said it reminded him of night traffic court.25 Heconcluded by saying:

Committed, hardworking judges are being pushed beyond theirendurance on the border. They soldier on but the costs areincalculable. Vacancies desperately need to be filled; new judgesdesperately 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, judicialemergencies forced circuit court judges to handle an additional 95 to 276 filings peryear, 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 districtcourts in Arizona.28

The crisis also hurt everyday Americans seeking justice. To cite just one examplereported by the Salt Lake Tribune, a man who lost his 2-year-old daughter andsuffered severe burns over 36% of his body after a faulty gas can exploded inside histrailer waited nearly five years to obtain compensation for his huge medical expensesand other injuries through the courts.29

Had Republicans been willing to solve this growing crisis in the courts, they couldhave agreed to take votes on 19 nominees who remained on the floor at the end ofthe 111th Congress, but they chose continued obstruction instead. Ten of thesenominees would have filled seats listed as judicial emergencies. None of thesenominees faced more than token opposition in committee. Yet Republicans blockeda vote on them and others by threatening to filibuster if any additional nominees wereconsidered.


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Pending Nominees Who Faced either No Opposit ion or Tok en Opposit ion inCommit tee

NomineeNominated

To Nominated

ReportedOut of

Committee

JudiciaryCommittee

Vote Race Gender

Amy Totenberg* N.D. Ga. 3/17/2010 12/1/2010UnanimousVoice Vote W F

Paul Holmes* W.D. Ark. 4/28/2010 12/1/2010UnanimousVoice Vote W M

Susan Carney* 2nd Circuit 5/20/2010 12/1/2010 16-3 W F

Edward Davila* N.D. Cal. 5/20/2010 12/1/2010UnanimousVoice Vote H M

Anthony Battaglia S.D. Cal. 5/20/2010 12/1/2010UnanimousVoice Vote W M

James Shadid* C.D. Ill. 5/27/2010 12/1/2010UnanimousVoice Vote AsA M

Max Cogburn W.D.N.C. 5/27/2010 12/9/2010UnanimousVoice Vote W M

James Graves* 5th Cir. 6/10/2010 12/1/2010 UnanimousVoice Vote AfA M

James Boasberg D.C.D.C. 6/17/2010 12/1/2010UnanimousVoice Vote W M

Sue Myerscough* C.D. Ill. 6/18/2010 12/1/2010UnanimousVoice Vote W F

Amy Jackson D.C.D.C. 6/18/2010 12/1/2010UnanimousVoice Vote W F

Diana Saldana* S.D. Tx. 7/13/2010 12/1/2010UnanimousVoice Vote H F

Marco Hernandez* D. Or. 7/13/2010 12/9/2010UnanimousVoice Vote H M

Steve Jones* N.D. Ga. 7/13/2010 12/9/2010UnanimousVoice Vote AfA M

Michael Simon D. Or. 7/13/2010 12/9/2010 16-3 W M

* judicial emergency

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Another way to alleviate the caseloads of overworked judges would have been for theSenate adopt the recommendations of the Judicial Conference of the United Statesand pass the Federal Judgeship Act of 2009, and add 9 courts of appeals and 38district court judgeships.30 Laws adding federal judgeships were enacted during eachof the previous five presidents terms, though the judges added at the end ofPresident Clintons term were all filled by President Bush.

D. Confirmat ions

Confirmations are the most critical measure of a presidents impact on the judiciary.Unfortunately for President Obama, as seen in the charts below, the Senateconfirmed fewer of his district and circuit nominees than every president back to

Jimmy Carter, and the lowest percentage of nominees 58% than any president inAmerican history at this point in a Presidents first term.31 By comparison, PresidentsGeorge 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

0

20

40

60

80

100

120

140


CCA

DCT

Total


Courts of Appeals 13 19 22 19 17 16

District Courts 47 68 48 107 83 44

Total 60 87 70 126 100 60

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Percentage Confirmed at End of First Congress

0%

20%

40%

60%

80%

100%


CCA

DCT

Total


Courts of Appeals 100% 95% 96% 86% 53% 64%

District Courts 96% 99% 96% 91% 85% 56%

Total 97% 98% 96% 90% 77% 58%

21


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I I I . President Obamas Judic ial Nom ineesPresident Obamas judicial nominations have differed from those of his predecessorsin several respects. First, President Obama clearly sought to improve judicial diversityby nominating an unprecedented percentage of women and minorities to the bench,many of them historic firsts. Second, there was less obvious ideological tenor to hisnominations compared with Republican presidents, who have routinely nominatedprominent conservatives. President Obama, with a few exceptions, was lessaggressive in nominating high-profile civil rights attorneys, public interest leaders, orleading progressive scholars to the bench. Third, President Obamas nominees havebeen older than any of his last five predecessors.

A. Diversit y

Gender and Racial Diversity

Gender and racial diversity were hallmarks of President Obamas circuit and districtcourt nominees. Indeed, the following chart shows the dramatic increase in thediversity of President Obamas nominees compared with the nominees of the pastfive presidents. Almost 45% of Obamas nominees were women and 41% werepeople of color, far outpacing his predecessors. Notably, Asian Americans comprisedalmost 8% of Obamas nominees, compared to fewer than 1.4% of past presidentsnominees.

Many of President Obamas nominees represented historic firsts on their courts.Notably, Justice Sonia Sotomayor is the first person of Hispanic descent to serve onthe Supreme Court. Similarly, Judge Denny Chin is the first Asian American to serveon the Second Circuit Court of Appeals, which has jurisdiction over New York,Connecticut, and Vermont. Judge Rogeriee Thompson is the first African Americanto serve on the First Circuit Court of Appeals, which covers Maine, Massachusetts,New Hampshire, Rhode Island, and Vermont. Barbara Keenan is the first womanfrom Virginia to serve on the Fourth Circuit Court of Appeals, which coversMaryland, North Carolina, South Carolina, Virginia, and West Virginia.

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Circuit Courts of Appeals and Distric t Court Ju dges by Gender andEthnici ty

President/Term Total Male Female White

AfricanAmerican Hispanic

AsianAmerican

NativeAmerican

ArabAmerican

Obama

confirmed60

30(50%)

30(50%)

34(56.7%)

16(26.7%)

4(6.7%)

6(10%)

0 0

Obama

pending43

27(62.7%)

16(37.2%)

27(62.7%)

6(13.9%)

716.2%)

2(4.6%)

01

(2.3%)

Obama

total 103

57

(55.3%)

46

(44.7%)

60

(58.3%)

22

(21.4%)

11

(10.4%)

8

(7.8%) 0

1

(1.0%)

Bush II

(2001-08)

confirmed

322250

(77.6%)71

(22.0%)265

(82.2%)23

(7.1%)29

(9.0%)4

(1.2%)0 0

Clinton(1993-00)

confirmed

372263

(70.7%)109

(29.3%)280

(75.3%)61

(16.4%)25

(6.73%)5

(1.3%)1

(0.3%)0

Bush I(1989-92)

confirmed

192156

(81.3%)36

(18.8%)171

(89.1%)13

(6.8%)8

(4.2%)0 0 0

Reagan(1981-88)

confirmed

376345

(91.8%)31

(8.2%)353

(93.9%)7

(1.9%)14

(3.7%)2

(0.5%)0 0

Carter(1977-80)

confirmed

259219

(84.6%)40

(15.4%)202

(78.0%)37

(14.3%)16

(6.2%)3

(1.2%)1

(0.4%)0

Moreover, many nominees who are still pending would, if confirmed, representfurther progress in making the judiciary better reflect Americas diverse citizenry. Forexample, J. Paul Oetken and Edward Dumont would become the first openly gayfederal district and circuit court judges, respectively, in history. Goodwin Liu wouldbecome 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.

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24

President Obama deserves immense credit here, but he did not do this alone. Anumber of minority bar associations and civil rights organizations worked tirelessly tohelp him find superb nominees.

Professional Diversity and Back ground

President Obamas nominees have tended to come from similar backgrounds, withmost having served in private practice, as judges, or as prosecutors prior to theirnominations, while fewer worked as public defenders, legal-aid attorneys, non-governmental public interest attorneys, or academics. This is true both for nomineesto courts of appeals and district courts.

Prosecutors were much more likely to be nominated than public defenders. Forty-two of Obamas nominees were prosecutors prior to their nomination including 10of his circuit court and 32 of his district court nominees, while only 17 nominees 2circuit court and 15 district court were public defenders.

Lawyers from private practice, and especially large law firms, were much more likelyto be nominated than legal aid attorneys who represented indigent clients. Ninety-fiveof President Obamas nominees served in private practice at some point prior to theirnominations, 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 courtand 2 district court worked as tenured or tenure-track professors. Those with anon-governmental public interest background were the rarest of nominees, with only1 who worked as a staff attorney for a public interest organization.

These numbers are reflected in the following charts.


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Circuit Court Nominee Experience

0

10

20

30

Priva

te

Pra

ctice

Fed

era

l

Ju

dge

Litiga

tion

and/or

Po

licy

Prosecu

tor

S

tate

Ju

dge

Academ

ia

Lega

lAid

Attorney

Public

Defe

nder

Pu

blic

Inte

res

t

Attorney

PrivatePractice

FederalDistrictJudge

Govt. CivilLitigator

and/or PolicyCounsel Prosecutor

StateJudge Academia

Legal AidAttorney

PublicDefender

Non-Govt.PublicInterestAttorney

24 11 11 10 7 5 3 2 0

District Court Nominee Experience

0

20

40

60

80

Priva

te

Prac

tice

Prosecu

tor

State

Ju

dge

Litiga

tion

an

d/or

Po

licy

Fe

dera

l

Mag

istra

te

Pu

blic

De

fen

der

Lega

lAid

Attorney

Aca

dem

ia

Pu

blic

Interes

t

Attorney

PrivatePractice Prosecutor

StateJudge

Govt. CivilLit. and/or

PolicyCounsel

FederalMagistrate

PublicDefender

LegalAid

Attorney Academia

Non-Govt.PublicInterestAttorney

71 32 27 24 19 15 3 2 1

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26

Looking beyond the numbers, President Obama has an opportunity to nominatejudges who will counterbalance the conservative views of the Constitution and thelaw that Republican presidents expect their nominees to implement. President Bushclearly tried to shape the law by nominating a bevy of controversial conservatives tothe bench.32 The same was true of his Republican predecessors. President Bush alsovalued his nominees membership in the conservative Federalist Society. This early inhis term, it is difficult to assess the overall impact on the state of the law thatPresident Obamas nominees will have, but at first glance they do not appear to havebeen selected to become intellectual counterweights to the most conservativeRepublican appointees.


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B. Age of Nominees

Republican presidents consistently appoint younger judges. By comparison, PresidentObamas circuit court judges were 3 to 5 years older on average than those ofPresidents George W. Bush, George H.W. Bush, and Reagan, and his district courtjudges were 2 to 3 years older on average than for those presidents. Moreover, thisage gap may increase as more of President Obamas nominees are confirmed, as theaverage age of pending nominees was 53.0 over a year older than for his confirmednominees. While the differences in average age may seem small, the effects are not.With lifetime appointments secured, younger judges will likely have an opportunity todecide dozens or hundreds more cases than their older peers. The extra years on thebench may also help them build their reputations within the judiciary and legal

academy, increasing their influence over the law. Additionally, younger judges have agreater likelihood of serving as nominees to higher courts.

Average Age of Confirmed Judges

45

46

47

48

49

50

51

52

53

54

55

Obama Bush II Clinton Bush I Reagan Carter

CCADCT

Overall

Obama Bush II Clinton Bush I Reagan Carter

Average Age of ConfirmedCourts of Appeals Judges

54.0 49.6 51.2 48.7 50 51.8

Average Age of ConfirmedDistrict Court Judges

50.4 49.1 49.5 48.2 48.6 49.6

Overall Average Age 51.4 49.3 49.8 48.3 48.9 50.1

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The final graph shows the distribution of all of President Obamas nominees by age. 33The data shows that the highest numbers of Obama nominees were between 52 and59 years old.

Number of Nominees by Age at Nomination

0

1

2

3

4

5

6

7

8

9

10

11

39 41 43 45 47 49 51 53 55 57 59 61 63

Age of Nominee 39 40 41 42 43 44 45 46 47 48 49 50 51

Number of Nominees 2 3 2 5 1 4 1 4 5 1 5 2 3

Age of Nominee 52 53 54 55 56 57 58 59 60 61 62 63

Number of Nominees 6 10 7 9 6 7 10 6 3 2 0 1

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C. Profi les 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, arrangedalphabetically and by circuit.34

U.S. Suprem e Court

Elena Kagan confirm ed

Justice Kagan, age 50, is the fourth woman to sit on the Supreme Court. Prior tojoining the Court, she was the Solicitor General of the United States and the formerdean 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 honorsfrom 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 forthe D.C. Circuit and for Supreme Court Justice Thurgood Marshall. She spent time inprivate practice as an associate at Williams & Connolly, LLP, but quickly moved tothe academic field as a professor at the University of Chicago School of Law. Whileteaching at the University of Chicago, she took on a special assignment as seniorcounsel 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 theDomestic 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 neverscheduled her hearing. She became a professor at Harvard Law School, and wassubsequently named dean.

Sonia Sotom ayor confirm ed

Justice Sotomayor, age 56, is the first Hispanic American to serve on the SupremeCourt. She was nominated by President George H.W. Bush to a district courtjudgeship in the Southern District of New York, becoming the first HispanicAmerican 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 PrincetonUniversitysumma cum laudeand from Yale Law School, where she was an editor of theYale Law Journaland managing editor of the Yale Studies in World Public Order. She wasan 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 inthe housing projects of the south Bronx. Her father was a factory worker who died

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when she was nine years old. Justice Sotomayor saw her mother sacrifice and worksix days a week to send her children to private school and to buy the onlyencyclopedia set in the neighborhood. Always aspiring to public service, JusticeSotomayor was an adjunct professor at New York University School of Law and alecturer-in-law at Columbia Law School. She was on the board of the Puerto RicanLegal Defense and Education Fund for twelve years, and was appointed to the Boardof the State of New York Mortgage Agency, tasked with helping low- and moderate-income families buy homes, as well as the New York City Campaign Finance Board, which provided public money for city campaigns, published voter guides, andensured campaign finance disclosures. She was also a member of the Second CircuitTask Force on Gender, Racial and Ethnic Fairness in the Courts.

First Ci rcui t Court of Appeals

O. Rogeriee Thompson confirm ed

Judge Thompson, age 59, is the first African American and the second woman on theFirst Circuit. Until her confirmation, she had served with distinction on the RhodeIsland Superior Court since 1997. She grew up in South Carolina, where her great-grandfather 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 twoschools merged. Following graduation from Boston University Law School, shereturned 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 firstAfrican American woman on a Rhode Island district court.

Second Circui t Court of Appeals

Denny Chin c onfirm ed

Judge Chin, age 57, is theonly active Asian American federal appellate court judge inthe United States. He was a district court judge in the Southern District of New Yorkprior to his elevation to the Second Circuit. An immigrant from Hong Kong whomoved to the United States when he was two years old, he grew up in New YorkCitys Hells Kitchen neighborhood, where his mother worked as a seamstress and his

father as a cook in Chinese restaurants. He graduated magna cum laudefrom PrincetonUniversity and earned a J.D. from Fordham University School of Law. Beforebecoming a district court judge, he clerked for a federal judge, worked in privatepractice, and served as an Assistant U.S. Attorney. Judge Chin earned widespreadpraise 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

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Gerard Lynch confirm ed

Prior to joining the Second Circuit, Judge Lynch, age 59, served as a district courtjudge for the Southern District of New York. Judge Lynch is widely considered to bean intellectual force. He received his B.A. from Columbia, where he wasvaledictorian, and his J.D. from Columbia Law, again graduating first in his class. Heclerked for Judge Wilfred Feinberg on the U.S. Court of Appeals for the SecondCircuit and Justice William Brennan on the Supreme Court. Judge Lynch spent manyyears teaching law at Columbia Law, where was also vice dean for five years. He alsoworked in the U.S. Attorneys Office for the Southern District of New York, first asassistant U.S. attorney where he prosecuted white-collar criminal cases and served aschief 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. confirm ed

Raymond Lohier, Jr., age 44, a Haitian American born in Montreal, Canada, served asSpecial Counsel to the United States Attorney for the Southern District of New Yorkbefore joining the Second Circuit. In that capacity, he gained extensive experience inrepresenting the government in securities fraud, insider trading, Ponzi schemes, andcommodities fraud. After immigrating to the United States, he received his A.B. in1988 from Harvard College, cum laude, and his J.D. from New York University Schoolof 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 legalexperiences 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 theDepartment of Justice, and was an Assistant United States Attorney in the SouthernDistrict of New York.

Robert Chatigny nominat ed

Judge Chatigny, age 59, has been a District Court Judge for the District ofConnecticut since 1994. From 2003 to 2009, he was the Courts Chief Judge. JudgeChatigny graduated from Brown University and Georgetown Law Center where he

was Case & Note Editor of the Georgetown Law Journal. He clerked for three federaljudges: Judge Conti in the Northern District of California, Judge Cabranes in theDistrict of Connecticut, and Judge Newman in the Second Circuit. He also spentmany years in private practice, and founded two law firms. He was the only one of 43nominees returned at the end of the 111th Congress that President Obama has notrenominated.

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Susan Carney nom inat ed

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) in1973 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 LevinCampbell on the United States Court of Appeals for the First Circuit. She worked atRogovin, Huge and Lenzner in Washington, D.C., as an associate and as partner,where she primarily represented large, nonprofit organizations. She left Rogovin toform the Washington, D.C. office of Tuttle and Taylor. She also worked for the laborlaw firm Bredhoff and Kaiser, and served as Associate General Counsel of the PeaceCorps.

Third Circui t Court of Appeals

Joseph A. Greenaway confirm ed

Prior to joining the Third Circuit, where he filled the seat formerly occupied bySupreme Court Justice Samuel Alito, Judge Greenaway, age 54, was a district courtjudge for the District of New Jersey. Nominated at age 39, Judge Greenawaydeveloped an extensive judicial record of approximately 850 opinions. He received hisB.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 theHarvard 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 SouthernDistrict 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 heworked until joining the bench.

Thomas I. Vanaskie con firmed

Thomas I. Vanaskie, age 57, was a district court judge in the Middle District ofPennsylvania and served as the Districts Chief Judge until his confirmation to the Third Circuit. A lifelong Pennsylvanian, Judge Vanaskie graduated from LycomingCollege 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 inprivate practice in Scranton, Pennsylvania for two firms prior to joining the bench.

Fourth Circui t Court of Appeals

Alberto Diaz confirm ed

Judge Diaz, age 50, is the first Hispanic American judge on the Fourth Circuit Courtof Appeals. He was previously a Special Superior Court Judge for Complex Business

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Cases in North Carolina. He earned a B.S. in Economics from the University ofPennsylvanias 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 andmisdemeanor cases, and became the Chief Review Officer. He later moved to theNavys JAG Office, serving four years as appellate counsel. Judge Diaz enteredprivate practice in 1995, working at Hunton & Williams, where he received the firmsE. Randolph Williams Award for public service, given to lawyers completing at least100pro bono hours in a calendar year.

Barbara Keenan confirm ed

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 ofthe 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 theCircuit Court as the first woman to be elected to this position by the Virginia GeneralAssembly. Thereafter, she was one of ten judges elected to the Court of Appeals ofVirginia, becoming the first woman state appellate court judge in Virginia. In 1991she was elected to the Supreme Court of Virginia. She received a B.A. from CornellUniversity, 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 lawfirm.

Andre Davis confirm ed

Judge Davis, age 61, was a federal district court judge in the District of Maryland priorto joining the Fourth Circuit. He received his B.A. from the University ofPennsylvania 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 ofMaryland, and for Judge Francis Murnaghan on the Fourth Circuit. He also handledappellate cases for the U.S. Department of Justice, Civil Rights Division, served as anAssistant 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. Daviswas previously nominated to the Fourth Circuit by President Clinton, and would have

become the first African American federal appellate judge, but his nomination wasblocked.

Jam es Wynn confirm ed

Judge Wynn, age 56, is the first African American from North Carolina to sit on theFourth Circuit. President Clinton had previously nominated him to that court, but hisnomination was blocked by Senator Jesse Helms. Judge Wynn was a state judge inNorth Carolina, including stints on North Carolina Court of Appeals and Supreme

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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 NavyReserves, and he served on active duty in the U.S. Navy JAG Corps. He received aB.A. from the University of North Carolina at Chapel Hill, a J.D. from MarquetteUniversity Law School, and an LL.M. from the University of Virginia.

Fi f th Circu i t Court of Appeals

Jam es Graves confirm ed (112 th 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 presidingjustice. He was the only African American on the state Supreme Court. JusticeGraves was born in Hinds County, Mississippi in 1953. He received a B.A. degreefrom Millsaps College, an M.P.A. in Public Administration from The Maxwell Schoolof Citizenship and Public Affairs at Syracuse University, and a J.D. degree fromSyracuse University School of Law. Justice Graves worked in private practice, was astaff attorney at Central Mississippi Legal Services, and held various positions in theMississippi state government, including serving in the state Attorney Generals office.He has also taught at Tougaloo College, Millsaps College, and Jackson StateUniversity. Justice Graves has received numerous honors and awards, including theNational Conference of Black Lawyers Judge of the Year award, and an honoraryDoctor of Laws from Millsaps College.

Sixth Circui t Court of Appeals

Jane Barnstett er Stranch conf i rmed

Prior to joining the Sixth Circuit, Jane Stranch, age 57, was the managing partner ofthe Nashville law firm Branstetter, Stranch & Jennings PLLC. She worked primarilyas a litigator for over 30 years where she gained extensive experience in labor andemployment and securities law. Known as an ERISA-specialist, Ms. Stranch had anational practice representing pension funds and individuals in benefit claims andcomplex securities class action litigation. Ms. Stranch was among the first womenadmitted to the University of Virginia, and later she transferred to Vanderbilt

University, where she obtained her B.A., summa cum laude. She graduated fromVanderbilt University Law School, Order of the Coif.

Bernice Donald nominat ed

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 firstfemale African American judge in Tennessee history. She has been a federal judge formore than 20 years, and has almost 30 years of judicial experience. Judge Donald was

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elected to her first judicial position in the criminal division of the Court of GeneralSessions in Shelby County. She was born in DeSoto County, Mississippi in 1951. Shewas one of the first students to integrate Olive Brach High School in the 1960s, andearned her B.A. from Memphis State University (now University of Memphis) andher J.D. from the Memphis State University Cecil B. Humphreys School of Law. Herlegal career spans private practice, public service, and legal academia. She opened aprivate law practice in Memphis, taught at Shelby State Community College, became astaff attorney with the Memphis Area Legal Services, and an Assistant PublicDefender with the Shelby County Public Defenders Office. She added aprofessorship at the University of Memphis School of Law, where she taught coursesin legal research and professional responsibility.

Seventh Circui t Court of Appeals

David Hamilton confirm ed

Prior to joining the Seventh Circuit, Judge Hamilton, age 53, was a district court judgein the Southern District of Indiana. His stellar record on the bench, in addition to hiscommitment to ensuring equal justice for all, made him a strong appellate courtnominee. Nonetheless, his nomination stalled in the Senate for over eight months,and his confirmation required the Senates first judicial filibuster. Hamilton won thatvote 70-29, and his confirmation by a vote of 59-39.36 Senator Lugar was the onlyRepublican to vote to confirm him.

Vict oria Nourse nominat ed

Ms. Nourse, born 1958, is a professor of law at the University of Wisconsin LawSchool. She earned her B.A. from Stanford University, and her J.D. from theUniversity of California, Berkley. She clerked for Judge Edward Weinfeld in theSouthern 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 aSpecial Counsel to the United States Senate committee investigating the Iran-Contra Affair, then worked as an appellate attorney in the Department of Justices CivilDivision, and as Counsel and Special Counsel to then-Senator Joseph Biden on theSenate Judiciary Committee. Professor Nourse has been a visiting professor atGeorgetown Law Center, Emory University Law School, NYU School of Law, Yale

Law School, and the University of Maryland School of Law.

Ninth Circui t Court of Appeals

Mary Murguia confirm ed

Judge Murguia, age 50, is the first Hispanic woman from Arizona to sit on the NinthCircuit. Prior to joining the Ninth Circuit, she was the first Hispanic woman on adistrict court in Arizona. The daughter of Mexican immigrants, Judge Murguia

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attended Kansas City public schools before attending the University of Kansas, whereshe received a B.A., a B.S., and a J.D. After law school, Judge Murguia devoted herentire career to public service. She worked as an assistant district attorney in the Wyandotte County District Attorneys Office, an Assistant U.S. Attorney in theDistrict of Arizona, Criminal Deputy Chief in charge of the Violent Crime Section inthe District of Arizona, and Director of the Executive Office for U.S. Attorneys.

Goodwin Liu nominat ed

Professor Liu, age 40, is Associate Dean and Professor of Law at the University ofCalifornia, Berkeley School of Law (Boalt Hall). If confirmed, Professor Liu would bethe 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 hisgeneration. He was born in Augusta, Georgia, the son of Taiwanese immigrants whocame to America to practice medicine in underserved areas. Professor Liu receivedhis B.S., Phi Beta Kapa, from Stanford University, where he was co-president of thestudent body and the recipient of the Lloyd W. Dinkelspiel Award, the Universityshighest honor for outstanding service to undergraduate education. He received hisM.A. from Oxford University as a Rhodes Scholar, and his law degree from Yale LawSchool, where he was an editor of the Yale Law Journal. He clerked for both JudgeDavid S. Tatel on the D.C. Circuit Court of Appeals and Supreme Court Justice RuthBader Ginsburg. He also worked in private practice at OMelveny & Myers inWashington, D.C.

Liu has remained committed to public service throughout his career. Before lawschool, he spent two years at the Corporation for National Service, helping to launchthe AmeriCorps program. Liu also worked as a Senior Program Officer for HigherEducation, where he led the agencys effort to build community service programs atcolleges and universities nationwide. Between clerkships, Liu acted as a SpecialAssistant to the Deputy Secretary at the U.S. Department of Education, where hegave advice on a range of legal and policy issues, including the development ofguidelines to help turn around low-performing schools. He has also distinguishedhimself in academia. Within five years of becoming an Assistant Professor of Law atBoalt Hall, Liu earned tenure and was appointed Associate Dean. An expert onconstitutional 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, schoolfinance, and desegregation focus on the needs of Americas most disadvantagedstudents. His paper in the Yale Law Journal, Education, Equality, and NationalCitizenship, won the Education Law Associations inaugural Steven S. GoldbergAward for Distinguished Scholarship in Education Law. And his book, Keeping Faithwith the Constitution, co-authored with Pamela Karlan and Christopher Schroeder, iswidely regarded as an accessible and incisive analysis of constitutional law. Liu has

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received the University of California, Berkeleys Distinguished Teaching Award, theuniversitys most prestigious award for teaching excellence.

Tenth Circui t Court of Appeals

Scott Mat heson confirm ed

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. QuinneySchool 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 OxfordUniversity, 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 ofUtah 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 associateat 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. Attorneyfor the District of Utah. He has also been a visiting associate professor in the FrankStanton Chair on the First Amendment at the John F. Kennedy School ofGovernment at Harvard University, and a Public Policy Scholar at the WoodrowWilson International Center for Scholars.

Eleventh Circui t Court of Appeals

Beverly Baldw in Martin confirm ed

Prior to joining the Eleventh Circuit, Judge Martin, age 56, was a federal district courtjudge in the Northern District of Georgia. Judge Martin graduated from StetsonUniversity and the University of Georgia Law School. She worked in private practicebefore becoming an assistant attorney general for the state of Georgia. She was alsoan Assistant U.S. Attorney focusing on drug conspiracy and firearms possession, andeventually became U.S. Attorney for the Middle District of Georgia.

Federal Ci rcu i t Court of Appeals

Kat hleen OMalley confirm ed

Prior to joining the Federal Circuit, Judge OMalley, age 54, was a district court judgefor 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, fromCase Western Reserve University School of Law, where she was a member of theCase Western Reserve Law Review and received the Edwin G. Halter MemorialScholarship and the International Trial Lawyers Award. After law school she clerkedfor Judge Nathaniel R. Jones on the Sixth Circuit, and practiced at both Jones Dayand Porter, Wright, Morris & Arthur, LLP, where she made partner. She then entered

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government service, working for Ohio Attorney General Lee Fisher, first as ChiefCounsel and then as First Assistant Attorney General and Chief of Staff. OMalleyserved on the Deans Advisory Board at Case Western Law School, where she alsotaught patent litigation.

Jim mie V. Reyna confirm ed (112th Congress)

Mr. Reyna, age 58, currently is a partner and director at Williams, Mullin P.C., inWashington, D.C. until his confirmation to the Federal Circuit. Mr. Reyna is the firstHispanic American ever to serve on that court. He is a leading international tradeattorney with significant experience in trade policy, business regulation, andcompliance 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. fromthe University of Rochester, and his J.D. from the University of New Mexico. He andhis wife Dolores Ramirez moved from New Mexico to Washington D.C. in the mid-1980s in order to care for their autistic son. He currently serves on the Board ofDirectors 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 ownfirm. He subsequently moved to Washington, D.C., where he joined a boutiqueinternational trade firm and became a partner.

Edward C. Dumont nominat ed

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 ControversyDepartment and a member of the Appellate and Supreme Court Practice Group atWilmerHales Washington, D.C. office. He received his B.A. from Yale, summa cumlaude, and his J.D. from Stanford. He clerked for Judge Richard Posner on theSeventh Circuit, received the Luce Scholarship from the Henry Luce Foundation,which allowed him to practice law in Thailand, and alternated his practice betweenprivate firms and the federal government. He has been an associate at Sullivan andCromwell, an Associate Deputy Attorney General, and an Assistant Solicitor Generalat the Justice Department, where he argued 18 cases before the U.S. Supreme Court.

D.C. Circui t Court of Appe als

Caitl in Joan Hall igan nominat ed

Caitlin Joan Halligan, age 44, is the General Counsel for the New York CountyDistrict Attorneys Office. She has practiced extensively before the Supreme Court ofthe United States, the United States Courts of Appeals, and the state appellate courtsin 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, whereshe served as managing editor of the Georgetown Law Journal, received the John M.

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39

Olin Law and Economics Fellowship, and was selected as a Public Interest LawScholar. Ms. Halligan clerked for Judge Patricia M. Wald on the D.C. Circuit Court ofAppeals, worked as an associate at Wiley, Rein & Fielding in Washington, D.C., andthen clerked for Justice Stephen G. Breyer of the United States Supreme Court. Shethen worked in private practice before joining the Office of the New York StateAttorney General, where she was the offices first Chief of the Internet Bureau, theFirst Deputy Solicitor General, and later Solicitor General of New York. TheNational Association of Attorneys General selected her to receive the Best Briefaward five years running. She left to become a partner at Weil, Gotshal & Manges inNew York, where she led the firms appellate practice until she returned to publicservice in her current role.

IV. Conc lus ion

President Obamas first two years were marked by unprecedented obstruction of hisnominees, creating a judicial vacancy crisis that remains unsolved. On the positiveside, his nominees were the most diverse in history, including the two women headded to the Supreme Court. Far more needs to be done, however, for PresidentObama 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 districtcourts, compared with 855 when President Obama took office.

2 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 111 th Congress,Republicans held 7 seats in the Senate Judiciary Committee. Of the 79 nominees Republicans votedon 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 2received 1 vote against.

3 The Administrative Office of the U.S. Courts defines a judicial emergency for circuit courts as anyvacancy in a court of appeals where adjusted filings per panel are in excess of 700; any vacancy inexistence more than 18 months where adjusted filings are between 500 to 700 per panel, and fordistrict courts as any vacancy where weighted filings are in excess of 600 per judgeship; any vacancyin existence more than 18 months where weighted filings are between 430 to 600 per judgeship; anycourt with more than one authorized judgeship and only one active judge.http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx.

4In the twelve months ending September 30, 2010, overall filings in the federal circuit and district courtsincreased by 4,750 over the previous twelve month period.http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/20 10/Ju dicialBusiness2010.pdf.

5 At a February 28, 2011 event at the Brookings Institution entitled Breaking the Judicial Nominations andConfirmations Logjam,Judge W. Royal Furgeson, Jr. lamented the serious problem faced by districtcourt judges in border regions, noting that processing of criminal defendants reminded him of thekind of assembly-line justice he observed as a young lawyer in night traffic court, although thesentences were much, much more severe. Seehttp://www.brookings.edu/~/media/Files/events/2011/0228_judicial_logjam/20110228_jif_transcript_one.pdf. at 13.

6See, e.g.,Melinda Rogers, Work for Utahs federal judges piling up while D.C. stalls out, THESALT LAKETRIBUNE, Feb. 23, 2011, available athttp://www.sltrib.com/sltrib/news/51291850-78/federal-utah-court-judges.html.csp.

7 Republican Senators used a number of tactics to obstruct and delay nominees. For example, theyrequired every nominee to be held over to a second executive session of the Senate JudiciaryCommittee 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. Thiswas all done despite the fact that they seldom voted against nominees on the merits, either incommittee or on the floor.

8 President Obama did not make his first nomination until March 17, 2009, and his first confirmationwas not achieved until September 17, 2009, more than 9 months into office. By November 2009, thePresident had made only 26 nominations. By contrast, President Bush had made 64 nominations at asimilar point in his first term. Charlie Savage, Obama Backers Fear Opportunities to Reshape Judiciary AreSlipping Away, N.Y.TIMES, Nov. 15, 2009, available at
http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspxhttp://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/20%2010/Ju%20dicialBusiness2010.pdfhttp://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/20%2010/Ju%20dicialBusiness2010.pdfhttp://www.brookings.edu/~/media/Files/events/2011/0228_judicial_logjam/20110228_jif_transcript_one.pdfhttp://www.brookings.edu/~/media/Files/events/2011/0228_judicial_logjam/20110228_jif_transcript_one.pdfhttp://www.sltrib.com/sltrib/news/51291850-78/federal-utah-court-judges.html.csphttp://www.sltrib.com/sltrib/news/51291850-78/federal-utah-court-judges.html.csphttp://www.sltrib.com/sltrib/news/51291850-78/federal-utah-court-judges.html.csphttp://www.sltrib.com/sltrib/news/51291850-78/federal-utah-court-judges.html.csphttp://www.brookings.edu/~/media/Files/events/2011/0228_judicial_logjam/20110228_jif_transcript_one.pdfhttp://www.brookings.edu/~/media/Files/events/2011/0228_judicial_logjam/20110228_jif_transcript_one.pdfhttp://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/20%2010/Ju%20dicialBusiness2010.pdfhttp://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx


41/42


42/42


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.

19 Letter to Sens. Reid and McConnell, Nov. 15, 2010, available athttp://legaltimes.typepad.com/files/111510-letter-

from-9th-circuit.pdf.

20 Carol J. Williams, Legal logjam leaving judges' seats empty in federal courts, L.A.TIMES,Aug. 30, 2010,available athttp://articles.latimes.com/print/2010/aug/30/nation/la-na-judicial-logjam-20100831.

21 JUSTICEJOHNROBERTS, 2010YEAR-ENDREPORT ON THE FEDERALJUDICIARY, Dec. 31, 2010,

available athttp://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf.22Seesupranote 5 at 13.

23Id. at 15.

24Id. at 17.

25Id. at 16.

26Id. at 18.

27 ALLIANCE FORJUSTICE, JUDICIAL EMERGENCIES REPORT, Nov. 23, 2010, available athttp://www.afj.org/judicial-selection/afj-judicial-emergencies-report.pdf.

28Seehttp://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/judcon.pdf.

29See supranote 6.

30 Federal Judgeship Act of 2009, S. 1653, 111th Cong. (1st Sess. 2009).

31See supranote 3.

32Some of the controversial conservatives nominated by President Bush included: Dennis Shedd,Fourth Circuit, Priscilla Owen, Fifth Circuit, Jeffrey Sutton, Sixth Circuit, Dianne Sykes, SeventhCircuit, Jay Bybee, Ninth Circuit, Jerome A. Holmes, Tenth Circuit, William Pryor, Eleventh Circuit,and Janice Rogers Brown, D.C. Circuit.SeeALLIANCE FORJUSTICE, JUDICIAL SELECTION DURING

THE BUSHAdministration 46-53 (Mar. 28, 2007) (discussing controversy around Bush nominees).

33 The data includes exact birthdates for thirty-one nominees, and the exact birth years for the remainingfifty-four nominees. For the nominees where only a birth year is available, we calculated their age atnomination date by subtracting their birth year from their nomination year. This may produce someminor error in the data. While not ideal, this is as accurate an analysis as can be made at the moment

with publicly available information.34 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/.

35See, e.g., Larry Neumaster and Devlin Barrett, Denny Chin, Judge In Bernie Madoff Trial, To Be NominatedTo Appeals Court, THE HUFFINGTON POST, Sept. 9, 2009,http://www.huffingtonpost.com/2009/09/09/denny-chin-judge-in-berni_n_281412.html.

36 http://judiciary senate gov/nominations/111thCongress cfm
http://legaltimes.typepad.com/files/111510-letter-from-9th-circuit.pdfhttp://legaltimes.typepad.com/files/111510-letter-from-9th-circuit.pdfhttp://articles.latimes.com/print/2010/aug/30/nation/la-na-judicial-logjam-20100831http://articles.latimes.com/print/2010/aug/30/nation/la-na-judicial-logjam-20100831http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdfhttp://www.afj.org/judicial-selection/afj-judicial-emergencies-report.pdfhttp://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/judcon.pdfhttp://www.afj.org/judicial-selection/http://www.huffingtonpost.com/2009/09/09/denny-chin-judge-in-berni_n_281412.htmlhttp://www.huffingtonpost.com/2009/09/09/denny-chin-judge-in-berni_n_281412.htmlhttp://www.huffingtonpost.com/2009/09/09/denny-chin-judge-in-berni_n_281412.htmlhttp://judiciary.senate.gov/nominations/111thCongress.cfmhttp://judiciary.senate.gov/nominations/111thCongress.cfmhttp://www.huffingtonpost.com/2009/09/09/denny-chin-judge-in-berni_n_281412.htmlhttp://www.afj.org/judicial-selection/http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/judcon.pdfhttp://www.afj.org/judicial-selection/afj-judicial-emergencies-report.pdfhttp://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdfhttp://articles.latimes.com/print/2010/aug/30/nation/la-na-judicial-logjam-20100831http://articles.latimes.com/print/2010/aug/30/nation/la-na-judicial-logjam-20100831http://legaltimes.typepad.com/files/111510-letter-from-9th-circuit.pdfhttp://legaltimes.typepad.com/files/111510-letter-from-9th-circuit.pdf

State of the Judiciary After 111th Congress

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