At almost every Senate judicial confirmation vote, both political parties unleash a flurry of statistics about the high number of vacancies on the federal court benches. Democrats use the numbers to paint Republican senators as obstructionists. Republicans use numbers to blame the White House for being slow on nominations.
So who actually bears responsibility when a vacancy doesn't even have a nominee? Both sides do, according to a new study by Russell Wheeler, a Brookings Institution fellow and judicial confirmation process expert.
That is, at least as far as the Wheeler can discern about a nominations process generally conducted outside of public view. He looked at the history of nominations and the 84 actual and future vacancies on the district and circuit courts.
Wheeler found that half the current federal judicial vacancies are in states with two Republican senators. Vacancies in those states are older than those in other states as well. That suggests Republicans are using the “long honored the concept of ‘senatorial courtesy’—a willingness to confirm judicial nominees only if the home state senators approve,” Wheeler wrote.
Of course, the Obama White House might be “slower to suggest potential nominees in states with Republican senators, or react more slowly to suggestions from those senators,” Wheeler wrote.
But even in states with two Democratic senators, the average number of days it took for the Obama White House to make a nomination – 391 – is longer than the overall time for all nominations under Bush to this point in his presidency—276, on average.
“We can only speculate, but no doubt both the Obama White House and at least some of the senators bear some responsibility for the high number of long-lasting nominee-less vacancies, and the long times from vacancy to nomination,” Wheeler wrote.
And that speculation is exactly why Wheeler suggests more disclosure in the pre-nomination process for the federal bench. He says the country should consider the proposal by Columbia Law School’s Michael Shenkman, a former Senate Judiciary staffer who later worked in the Obama administration.
Shenkman has proposed that White Houses publish the status of pre-nomination negotiations (although not the names of the potential nominees themselves), which would bring greater transparency to the public to see who is to blame for judicial vacancies.
“At the least, such a public list (and any disputes over its accuracy) would shed more light on the vacancy situation than merely counting the number of nominee-less vacancies,” Wheeler wrote.