Strategist - The FindLaw Law Firm Business Blog

Obama Reshaped the Courts, but There Are Still Many Vacancies

One of the lead stories in The New York Times over the weekend outlined how President Barack Obama has reshaped the federal judiciary, with Democratic appointees outnumbering Republican picks in nine out of 13 federal appeals courts. The shift was even more pronounced after the Senate abolished the filibuster for judicial nominations (other than for the Supreme Court).

But that's not a huge surprise, is it? If someone is in office long enough, he'll fill the seats.

What might surprise you, however, is the number of vacancies remaining: five dozen, between the district courts and appeals courts.

The Shift to the Left in Numbers

When President Obama entered office, only one of the appeals courts, the Ninth Circuit, had a majority of its judges appointed by Democrats. Now, that figure stands at nine. Here are a few other stats, some of which come from the Times article:

  • The Ninth, Eleventh, Fourth, First, Federal, D.C., Second, Third, and Tenth circuits all have more Democratic appointees.
  • The Eighth, Fifth, Seventh and Sixth circuits all have more Republican appointees.
  • The D.C. Circuit's shift was particularly dramatic: Four of 11 judges were appointed by Obama, three of whom replaced Republican appointees.
  • The current ratio is 95 Democratic appointees to 77 Republican appointees.
  • The ratio when Obama entered office was 99 Republican appointees to 65 Democratic appointees.

A Lot of Vacancies

How many seats are open on our nation's federal benches? According to The Hill's Congress Blog, the number stands at 60; the federal judiciary's website says 59. Either way, that's a pretty big number, but it does include both district court vacancies and circuit court of appeals spots.

Let's stick to the appeals courts, which have seven vacancies, none of which have a pending nominee, including:

  • Third Circuit (vacant since July 1, 2013)
  • Fifth Circuit (vacant since August 1, 2012)
  • Fifth Circuit (vacant since December 31, 2013)
  • Sixth Circuit (vacant since August 16, 2013)
  • Seventh Circuit (vacant since January 7, 2010)
  • Eleventh Circuit (vacant since October 26, 2013)
  • Federal Circuit (vacant since June 30, 2014)

We haven't heard much on the two Fifth Circuit vacancies -- no controversies, no nomination rumors, nothing, though a third vacancy was just filled on that court's bench. If we had to guess, we'd say it has something to do with blue slip vetoes -- states' senators can block a nominee and the Fifth Circuit is extremely conservative. The lucky recent appointee, Judge Gregg Costa, previously clerked for two Republican appointees, so we're guessing he's not exactly an ideological soul mate of President Obama.

But the Seventh Circuit's had some news: The Wisconsin Federal Nominating Commission is currently sorting through candidates for recommendation to President Obama. There will also be a vacancy opening up in February 2015, as Judge John Daniel Tinder announced earlier this year that he is planning on stepping away completely -- not taking senior status -- after more than 25 years on the federal bench, reports Above the Law.

No matter who is nominated, don't expect a lot of movement in the next few months. With election season underway, Congress will soon be in recess for a bit. And since there are no nominees pending for the appeals courts, those vacancies will almost certainly stay vacant until after the new year.

Related Resources: