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Judicial Vacancies Rising Under Obama, Study Says

Federal trial court vacancies are going up under President Obama, even as caseloads are rising. A Brookings Institution report released Friday shows that this is the first time in memory that a president three years into his first term has seen judicial vacancies rise.

The report shows that Obama has been slower to nominate trial judges, the Senate slower to confirm them, and at the same time a larger number of judges are retiring.

Authored by Russell Wheeler, the Brookings report shows that Obama was slow off the mark in his first year, making fewer nomination than his predecessors. But the amount of time needed to win confirmation once nominations have been made has also risen dramatically.

The report says that because of foot-dragging by Senate Republicans, trial court nominees waited on average seven months to win confirmation, though only nine of the 97 confirmed nominees had more than a handful of GOP votes actually cast against them.

Overall, more than a quarter of the 133 trial court nominees are still awaiting confirmation, meaning that the Obama confirmation rate for trial judges is substantially lower than for previous presidents.

Obama has been more successful in winning confirmation for appeals court nominees. The report shows that two-thirds of the Obama appeals court nominees have been confirmed. The figure is a bit lower than, but roughly comparable to, the appeals court confirmation rate in the George W. Bush and Clinton administrations. The report attributes the greater success rate to two factors — relatively conservative nominees, and the fact that Obama has not been quite as slow in making these nominations.

On the diversity front, the report shows Obama continuing and significantly enhancing a trend toward more women and minorities. President Eisenhower nominated all white men to the federal bench in his first three years. For Presidents Kennedy and Johnson, the figure was 93 percent white male; for President Nixon, 95 percent.

The first significant drop came during the first three years of the Carter administration, when the percentage of white males fell to 66 percent; it went up to 86 percent in the Reagan administration, fell to 73 percent for the first President Bush, then fell again to 53 percent under President Clinton. It rose to 66 percent white male for the second President Bush, and now, for the first time, in the Obama administration a majority of judicial nominees are either women or minorities, or both. Only 38 percent are white males.

Appointments of Asian-Americans have been particularly notable. Obama appointed fully one-third of the 24 Asian-Americans now sitting on the federal bench, and three more Asian-American nominations are pending.

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