Today, Dylan Matthews at the Washington Post illustrated the magnitude and consequences of chronic understaffing in the federal judiciary. The highlights (lowlights?):
- The total number of vacancies in lower federal courts grew by about 50 percent during Obama’s first term in office.
- Obama has nominated judges at a slower rate than his two most recent predecessors.
- The interval between nomination and floor vote has grown substantially for district court judges, but not for court of appeals judges, where we would expect the higher stakes to produce greater incentive for senators to obstruct.
Presidents often get credited and blamed for circumstances beyond their control, and so much of the critique of Obama’s presidency subscribes to what Brendan Nyhan memorably labeled the “Green Lantern Theory of the Presidency,” in which failure to achieve presidential policy goals is purely the product of insufficient presidential gumption. But even if multiple actors bear responsibility for insufficient progress on staffing the courts, Obama’s hesitance to place more nominees in the pipeline represents a glaring unforced error, to borrow Jonathan Bernstein‘s term. If vacancies remain because Republican senators won’t engage, as per longstanding custom, with the White House to aid in selecting district court nominees, as the Alliance for Justice claims, then the president should nominate unilaterally and let the chips fall where they may.