In a quiet news statement sent out at 3 p.m. on a Friday, the Obama administration officially withdrew the nomination of Caitlin Halligan to sit on the U.S. Court of Appeals' D.C. Circuit, replacing John Roberts. The withdrawal leaves the court with only seven of its eleven members in place — and reemphasizes the problem of slow or blocked judicial nominations.
Two weeks ago, the Senate voted for the second time on whether or not Halligan should be confirmed to the bench. Except: not really. It actually voted on whether or not to end the filibuster that had blocked Halligan's confirmation for months, a vote that requires 60 votes. Halligan got 51.
The vote prompted a response from the Boston Globe.
Obama has never been able to get a nominee on the court, symbolizing the Senate’s failure to approve nominations to dozens of courts nationwide. As a result, four years after Obama took power in the White House, Republican appointees still hold a 4-to-3 majority over those named to the court by Democratic presidents, and that has resulted in a series of conservative rulings that affect the lives of millions of Americans.
Last weekend, The Times offered the diagram at right, showing how the Senate's inaction on confirmations has left the majority of appeals circuits short of a full bench. It also noted that obstruction of Bush appointees was eventually overcome by a bipartisan agreement avoiding filibusters — an agreement that has since been abandoned.
Jeffrey Toobin of The New Yorker argues there's not a lot Obama can do. Judges that aren't blocked by filibuster are blocked by pokiness.
Because the Senate schedule operates by unanimous consent, Republicans must agree to take votes on judicial nominees, and they have been slow and stingy in doing so, even when they have no plans to filibuster or even to vote no. For example, eighteen district court nominees, all uncontroversial, are currently awaiting votes on the floor. All will be confirmed eventually, but Mitch McConnell, the Senate Minority Leader, parcels out agreements to take votes just one or two judges at a time. “We are not hearing any opposition to the district court nominees,” Ruemmler said. “The process is just too slow.”
The graph below shows the fate of Obama's nominated judges since 2009 for the Supreme Court, appellate court (like Halligan), and district courts. (It was compiled with data from here and here, and is likely not entirely up-to-date.)
By breaking down the outcome of each nomination, you can see the differences in the two court systems. Appellate court nominees are more likely to be filibustered.
Nominees to both court systems have to wait for the privilege of a vote. The average time between nomination and confirmation for a district court nominee is 187.2 days. For an appellate nominee, 205.9.
Halligan's nomination never had much of a chance. It was a nomination to a hotly-contested position which both parties were willing to fight over. Her timing was bad in another respect: One of the main points of contention was a 2003 speech criticizing gun manufacturers, a topic that would make even a majority vote in the Senate tricky, but not impossible, at this point.
In a statement, Obama lamented the process that prompted Halligan to withdraw her name. "Deeply disappointed," he wrote that the D.C. Circuit vacancies are "unacceptable". But with the Senate operating as it does, he has acceptance is about the only choice he has.