Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Here's a staggering fact: Since the 2008 election, Republican-appointed judges are actually a higher percentage of the federal bench than before -- even with a Democratic president and control of the Senate.
A determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Barack Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago.The delaying tactics have proved so successful, despite the Democrats' substantial Senate majority, that fewer than half of Obama's nominees have been confirmed and 102 out of 854 judgeships are vacant...
When Bush left office, Republicans had appointed just under 60 percent of all federal judges. Twenty months later, the number has dipped only slightly to a shade under 59 percent, according to statistics compiled by the liberal Alliance for Justice. Because of retirements, the percentage of Republican-nominated district judges actually has gone up.
Some of these numbers are mind-blowing:
Now there are 45 nominees awaiting action, two for nearly 13 months. After Alexander's complaint, the Republicans agreed to allow a mid-September vote for appeals court nominee Jane Stranch, first nominated by Obama in August 2009.At this point in President George W. Bush's first term, 72 judges had been confirmed by a Senate that Democrats controlled for much of Bush's first two years. By contrast, the Senate has had 59 or 60 seats under Democratic control during Obama's tenure but has only confirmed 40 of his judges. Nixon got 33 judges through a Democratic-controlled Senate.
Obama's confirmation percentage is now 47%. The lowest number of any recent president was Bush 41, at 79.3%.
Politics
Comments
If judges are going to be known as "Republican" or "Democrat" then they need to be on a ballot regardless of the legislation they pass from the bench.
Posted by: asdf | September 8, 2010 11:41 AM
Hmmm, now Americaphile Ministries and madtheswine are accomplished Poes here, but asdf? I've seen a few postings, none with such a brilliant line as this. Ah, all that legislation those judges are passing from the bench! They're so activist those judges! Remember: being in the reality-based community is only an insult if you're a neocon. The rest of us consider it a point of pride to actually know what we're talking about. Ya know, like knowing what judges actually do (hint: legislators legislate, judges judge. It's right in their fucking names).
Posted by: Rob Monkey | September 8, 2010 11:51 AM
asdf, #1: If judges are going to be known as "Republican" or "Democrat" then they need to be on a ballot regardless of the legislation they pass from the bench.
Yes, I suppose that knowing whether a judge is a Democrat or a Republican might allow to guess whether they will tend to reach decisions that you disagree with. But there are plenty of surprises.
Posted by: Chiroptera | September 8, 2010 11:58 AM
I'd be more worried about this factoid if it weren't for the fact that my two favorite decisions in recent years (Dover, Prop 8) were written by GOP-appointed judges. It's a bit of joy in my life, doubled by the fact that it pretty much completely blasts folks like asdf out of the water.
Posted by: Freemage | September 8, 2010 12:24 PM
these were the up-and-down-vote crowd ... what was it, just two years ago?
how time flies.
also, /agree with #4.
Posted by: andrew | September 8, 2010 12:49 PM
Freemage @ 4:
My concern is that the type of elected Republican who would nominate judges like the ones who ruled on Dover and Prop. 8 are almost non-existent. This will have an effect on how judges who are ambitious develop their own jurisprudence. So from my perspective I am increasingly concerned that justice in the future will be less than it was as Republican-nominated judges ignore the standards we encounter from Judges Jones, Posner, or Kozinski and we instead are confronted with an increasing number of Republican nominees who perceive Roy Bork as a martyr and Antonin Scalia as the gold standard.
Posted by: Michael Heath | September 8, 2010 1:22 PM
Michael Heath, pretty sure you mean Robert Bork -- confusing him with Roy Moore, perhaps?
Posted by: Squiddhartha | September 8, 2010 2:53 PM
Agreed with Michael Heath @6. In spades.
As far as the issue of Obama's stalled nominations goes, this is the consequence of the easing of the filibuster in recent years. Once upon a time, those intending to filibuster actually had to stand on the Senate floor and continue talking. (The House Rules Committee sets the amount of debate time for each piece of legislation coming to the floor, but the Senate has "unlimited" debate, meaning there are no limits set by rule, and each senator can speak to an issue for as long as she/he wants.)
Today the Minority leader just lets the majority leader know that they intend a filibuster, and the Majority leader normally doesn't bring the issue to the floor unless and until he's persuaded the minority leader to call of the (planned, but never actually executed) filibuster. By going along with this system the Democrats have made themselves fully complicit in the Republicans stalling tactics, and allowed the Republicans to become the party of obstructionism without real public awareness of it. If the Republicans were forced to conduct real filibuster after real filibuster two things would happen: They'd get weary of doing it, and the public would begin to see them as the root problem inside the beltway. Time and again through U.S. history the obstructionist party has ultimately lost political support.
Of course that process of losing support doesn't happen instantly, so it may be too close to the elections for the Democrats to get tough now, and doing so after the elections might just look like sour grapes.
Besides, they're going to cling to the hope that the Republicans will play the comity game and let the Democrats do the filibuster on the cheap, too. I'm not sure the Republicans will go for that if they win the Senate, though.
But if the Demos retain control of the Senate they need to come to their senses and make the Republicans start working harder at their filibusters. I don't say that as a Democratic partisan, because I'm not one. I say it as someone who respects the republican nature of our system that puts roadblocks in front of the majority, but thinks it shouldn't be so easy to block the majority that we effectively have minority rule.
Posted by: James Hanley | September 8, 2010 2:59 PM
The problem is that the GOP recognizes that they will pay no penalty by obstructing, because the Dems don't have the guts to fight them. That's the lesson of the "Up or down" vote nonsense a few years ago; the GOP was willing to fight, the Dems are not. They never are.
The Dems compromise and look weak. Just the other day, Harry Reid was complaining that the Republicans wouldn't "let" the Dems pass legislation. The Dems think that the charge of "obstructionists" will somehow resonate with the public. I see no evidence that the public cares for the inside baseball of who is obstructing whom.
The Dems should have, the day after the inauguration in 2008, invoked the nuclear option in the Senate, gotten rid of the filibuster, and said to the country, "We're going to pass what we want. We have majorities in both houses and the presidency. In 2010, you can vote us out if you don't like what we do." And then let the chips fall where they may.
But that would take balls. Which the Dems don't have.
Posted by: Woody Tanaka | September 8, 2010 2:59 PM
Micheal Heath @ 6: Right on!
James Hanley @ 8: I couldn't agree more. I fear the Dems are simply too afraid. Period.
Woody Tanaka @9: the nuke option worries me from at least two perspectives.
1. would you trust a republican majority with that power?
2. would you really want to deny the 'nuance' that an informed and involved opposition can bring to the democratic process of governance?
Posted by: TonyC | September 8, 2010 3:09 PM
Woody,
I respectfully disagree on two points.
First, I think the filibuster should stay. It should just require a real effort, rather than a phone call.
Second, the public will object to obstructionist tactics, but they have to really see it happening, not just hear the majority leader claim it's happening.
Posted by: James Hanley | September 8, 2010 3:40 PM
Squiddhartha:
Nah, an incurable mental block regarding Mr. Bork's given name.
Posted by: Michael Heath | September 8, 2010 3:50 PM
Convincing people that something is obstructionist is challenging. A democrat saying that a republican is trying to stop him: Does that sound like a prima facie case of obstructionism? There's nothing inherently wrong with one party trying to stop the other party from doing something.
Making them actually filibuster seems to me to be crucial. People will realize what is going on, and see that it's just people blustering endlessly. They will only be able to filibuster when they can make the public case that it is important enough. Sure, be polite and let them have bathroom breaks. But no more.
I'm reminded of a sci fi show, forget which one. Two sides had been fighting for 1000 years. Early in the war they decided to be "humane" and simulate casualties and then painlessly kill the people that the weapon would've killed. The reduced horror allowed it to go on far longer.
Posted by: Gopiballava | September 8, 2010 4:47 PM
I dislike the filibuster. It's inherently undemocratic to require a supermajority to pass legislation and to confirm nominees. If the Senate wants to ensure that everyone is allowed to speak on legislation, they should enact legislation that would require 70 votes for cloture the first day, 65 the second, 60 the third, 55 the fourth and 51 the fifth.
@15 - Star Trek TOS: A Taste of Armageddon
Posted by: Ken in Tucson | September 8, 2010 5:44 PM
Ken in Tucson states:
I agree the filibuster is undemocratic, but that's by both design and intent. Therefore the argument doesn't end at the point of discerning its inherent undemocratic nature (at least from a majoritarian perspective), but must instead starts there that purer democracy is superior democracy.
I've always been a fan of the filibuster and remain one though I now hold that position far more tenuously. Some of this forum's British subjects made a compelling case for a more democratic legislature a few months back that has me reevaluating my position. I think James might be wrong that it's a lack of cloture holding up these nominees; I recently read it was instead certain parliamentary rules that allow individual senators to stall progress through Committees not Senate floor stalling tactics. I certainly support getting rid of individual or small-group stalling tactics which were primarily instigated to accomodate difficult travel conditions in the late-18th/early-19th century; especially some covert ways a Senator could put a hold on certain pieces of business.
I've also been watching China kick India's ass econonmically, primarily because India's form of democracy is much like ours where it's difficult for their government, just like ours, to confront a challenge and quickly and optimally act on it like we've seen out of China since the late-1970s. That's been resonating enough with me to reconsider my position on the filibuster which slows change. My biggest defense of holding on to it is how close we are to getting a GOP-majority Senate where the furthest reaches of the right dominate. I have no desire to see the end of a movie where the GOP has the majority and there is no ability for 40 Senators to obstruct legislative initiatives.
Posted by: Michael Heath | September 8, 2010 6:02 PM
Michael,
Committee rules are also part of the issue, true. Committee chairmen have the ability to play hardball, however, as does the Senate majority as a whole. The committee chair can exercise almost unlimited authority over the Committee's agenda--the Judiciary Committee chair should ensure that everything else on their agenda is behind votes on these appointees, and increase the number of meetings while twisting his fellow Democrats' arms to make sure they show up. And the Senate majority leader should make sure any state with two Republican senators gets no pork until the appointees get an up-or-down vote.
There are methods for the majority to exert control, but they have to have the will and have to stay organized as a team. Neither characteristic fits the Democrats of this era, while both characterize the Republicans of this era, at least to a noticeably larger degree than the Dems.
Posted by: James Hanley | September 8, 2010 9:16 PM
http://seattletimes.nwsource.com/html/nationworld/2012820890_bench06.html
According to this report, dated 9/5/10,
Of the 102 federal judgeships open, there are nominees pending for 39 seats.
"Republicans can't block something that's not there," said Don Stewart, an aide to Senate Minority Leader Mitch McConnell, R-Ky.
Obama's judicial confirmation rate is the lowest since analysts began detailed tracking of the subject 30 years ago, with 47 percent of his 85 nominations winning Senate approval so far. That compares with 87 percent confirmed during the first 18 months of the previous administration, 84 percent for President Clinton and 93 percent for President Reagan.
So, there are some 63 appointments that have not yet been made by the Obama administration.
Who's to blame for that? It's not the Republicans.
Posted by: Deb | September 8, 2010 10:54 PM
@ Ken in Tucson
Yes, that Star Trek featured some of Shatner's best overacting of his career. I think. Every time I see an old episode I think that one is his best over-the-top performance.
Long live Captain Kirk!
Posted by: Fifth Dentist | September 8, 2010 11:40 PM
Micheal: You do, of course, raise a good point about nominees going forward, especially with Obama's penchant for picking solidly moderate judges.
Deb@17: It's true that Obama's behind on nominations--but the second quoted paragraph makes it clear that yes, that IS the GOP's fault. He's only been able to get half the approval level of his predecessors--which means that he's got to bend over backwards to find a candidate that the GOP might actually approve.
Posted by: Freemage | September 9, 2010 11:47 AM
Behind on nominations? He's more than 50% "behind on nominations." Perhaps if he actually submitted names, they'd go through.
Consider the CBS report's 7th paragraph:
Obama has voiced only tepid public objection as more and more of his judicial nominees become stranded in Senate limbo. Senate Majority Leader Harry Reid, D-Nev., has been unwilling to set aside the considerable time needed to force votes under complex Senate rules.
Who's failing to do their job here? I think the "blame the Republicans" is a smokescreen.
Posted by: Deb | September 9, 2010 12:35 PM
TonyC @10
"1. would you trust a republican majority with that power?"
Do the Democrats use the power of the filibuster? Sam Alito, and the Bush giveaways to the rich suggests that, no, they don't. They're too busy being scared of being called obstructionists and thinking that there is a groundswell of support among their base for being "bipartisan."
But I would trust the American people to change the makeup of the chamber if a party does things with the legislative power with which it is entrusted which the American people disapprove. Neither party "trusts" the other, which is why the minority position always wins. Actually, what always wins is the monied interests who use the dysfunctional system to be sure that the interests of business and the MIC are protected, while working folks get bent.
"2. would you really want to deny the 'nuance' that an informed and involved opposition can bring to the democratic process of governance?"
What nuance? Really, what "nuance" has the Republicans offered in the last 18 months? And what "nuance" have they offered as a result of the filibuster being there that they wouldn't have offered in its absence? I am not trying to be a wiseass, I am really interested in knowing what actual use you find for this thing.
Further, if they're given a chance to say their piece, to provide their nuance, then tally the votes, there would be more involvement by the opposition, because they would have to persuade and try to reason with the majority. They don't try to do it now, because they don't need to.
Posted by: Woody Tanaka | September 10, 2010 1:42 AM
James Hanley @ 11
"Second, the public will object to obstructionist tactics, but they have to really see it happening, not just hear the majority leader claim it's happening."
Aside from the Clinton era Gov't Shutdown, which was sui generis, when has the public objected to obstructionist tactics, to the point where it had an electoral effect? More often, the claim that works is where the obstructing party paints the majority party as being a "do nothing" congress.
But when the party who was elected to do the job, actually does it, even over the objections of the other party, people are willing to overlook problems because even if there are some mistakes, at least those politicians are working hard, getting stuff done, and trying to make a difference.
How many programs did FDR run through that got shot down by the Courts? Americans didn't flee from his as a failure or a menace, they flocked to him, because even if he made mistakes, it was clear he wasn't going to let some Republican legislators stop him. Cf. that to Obama/Reid, who seem to put their hands on their hips and whine "It's not our fault. The Republicans won't let us pass legislation...." Uggh. Man up, for Christ's sakes.
Posted by: Woody Tanaka | September 10, 2010 1:52 AM