Partisan Makeup of the Bench

Article excerpt

Despite Democrats winning the White House, a filibusterproof majority in the Senate,1 and more appointment opportunities than in recent times, President Obama was unable to significantly alter the overall partisan makeup of the bench. In fact, at the start of the 1 1 1th Congress the proportion of active judges on the lower federal courts appointed by Democratic presidents was 39.1 percent and had dropped to 37.9 percent as the 111th ended. While it is instructive to examine the overall partisan change on lower courts, we also separately analyze the district courts and courts of appeals, as two very different stories are told at those different levels of the federal courts.

Judicial selection was greatly affected by the bitter partisan political divide over the past two years. The drama that played out during the 1 1 1th Congress, especially over district court nominees, significantly hampered Obama's ability to make a dent in the Republican appointment advantage on the district courts. At the beginning of the 111th Congress, Democratic appointees held 39.8 percent of the total authorized positions for the district courts and by the end the percent had dropped to 37.3.2

With the Obama administration slow out of the gate with nominations and Republicans treating every district court nominee with the scrutiny previously reserved for Supreme Court or controversial courts of appeals nominees, Obama obtained confirmation of only 44 district court judges out of 78 nominations (56.4 percent) from 111 appointment opportunities during his first two years.3 By comparison, at this point in their presidencies, Clinton and W. Bush successfully appointed 107 (90.7 percent of nominees) and 83 (84.7 percent of nominees) district court judges, respectively.

At the end of the 111th Congress more than one in ten seats on the district courts were vacant, which represents an increase of nearly 150 percent from the end of W. Bush's tenure. The paucity of confirmations significantly reduced Obama's ability to alter the partisan composition of the district courts. Notably, if no Democratic appointees had left the bench, 44 confirmations would not have been enough to swing the balance in the Democrats favor. However, as discussed below, relatively large numbers of prior Democratic appointees retired, resigned, or were elevated during the Ii lth Congress.

More vacancies occurred on the district courts during the past two years than in recent times - 84 compared to 62 during W. Bush's first two years and 60 during Clinton's - and the vast majority of these vacancies came from Democratic appointees, a full 71.4 percent.4 Overall, this fits the historical pattern in which accelerated departures from the bench - especially judges taking senior status - accompany changes in partisan control of the White House. This also makes sense, since judges who are eligible to take senior status or retire with full benefits would probably do so under a partisan-compatible president and Congress since their replacement is more likely to be ideologically similar.

This phenomenon may have been even more exaggerated in 2008-2010 since more than 60 percent of the judges left active service before Senator Scott Brown was elected in January 2009 as Senator Ted Kennedy's successor, officially ending the Democrats filibuster-proof majority in the Senate. However, the President's ability to alter the partisan makeup of the bench is contingent upon his ability to replace appointees of the other party with his own. Given that 71.4 percent (n= 60) of those who left the district courts were appointed by Democrats, Obama was very limited in this regard.

Also notable about the vacancies that occurred during the 111th Congress is that, of the 84 judges who left active service on the federal district courts, 55 (65.5 percent) were Clinton appointees.5 This represents the "generational effect," which posits that the overall complement of departing judges in any given administration is dominated by the appointees of a specific predecessor of the same party as the sitting president. …