Report: Obama Behind in Making Bench Appointments

, The National Law Journal

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WASHINGTON - President Barack Obama lags behind George W. Bush when it comes to leaving his imprint on the nation's federal courts of appeals, a Brookings Institution report has found.

Last year brought heightened contentiousness to the circuit confirmation process—particularly involving Obama's three nominees to the U.S. Court of Appeals for the D.C. Circuit. That fight led Democrats to change Senate rules and prevent the minority the right to block judicial nominations (except for the U.S. Supreme Court).

Number of Judicial Vacancies at Inauguration and During 5th Year for Presidents Clinton, Bush and Obama

In the shadow of that political battle, however, the federal courts still have more judicial vacancies now than at the beginning of the Obama administration, according to a year-end roundup by Russell Wheeler, a Brookings fellow who studies the nominations process.

That happened even though Obama pushed his pace on nominations.

"Bush and Clinton, by contrast, saw the number of vacancies decline overall by the end of their fifth years in office," Wheeler writes.

Obama's appointments to the bench have changed the balance of courts of appeal when it comes to which party appointed the active judges. In 2009, seven courts of appeals had a majority of Republican appointees among their active status judges, Wheeler writes. Today, seven of them have a majority of Democrat appointees.

But Obama lags behind Bush when it comes to shaping the judiciary (by the end of their fifth years) mainly because Bush had a head start, Wheeler points out.

"Obama had a circuit confirmation rate about the same as Bush's, but Bush inherited an appellate judiciary split evenly between Republican and Democratic appointees, with 26 vacancies," Wheeler writes.

"He was able by the end of 2005 to shift that split to 59 percent Republican appointments (and 60 percent by the end of eight years). Obama inherited that 60-40 split. At the end of 2013 it slightly tilted to Democratic appointees (52 percent to 48 percent)," Wheeler writes.

Since Obama's inauguration in January 2009, he has nominated 27 judges in New York: five to the Second Circuit Court of Appeals, 16 to the Southern District, one to the Northern District, three to the Eastern District, and two to the Western District. All have been confirmed.

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