The Senate Judiciary Committee heard Wednesday from California lawyer Michelle Friedland, President Obama’s nominee for the 9th Circuit Court of Appeals, which includes California. If she's confirmed, the 9th Circuit will finally be fully staffed with 29 judges.
Friedland brought a prominent ally to her Senate confirmation hearing: former U.S. Supreme Court Justice Sandra Day O'Connor. Friedland is a former clerk for the first woman on the High Court. After the usual questions about whether the nominee would rely on the law and precedent (she would) or her personal opinions (she would not), Justice O'Connor told Friedland, "That went well."
This is the second confirmation hearing in two weeks for California nominees to the 9th Circuit Court of Appeals. University of Richmond law professor Carl Tobias says it doesn’t hurt to have Senator Dianne Feinstein – who has a reputation of working with her GOP counterparts – as a senior member of the Judiciary Committee.
But even if the full Senate confirms John Owens — last week's nominee— and Friedland, there’s still a higher than 10% vacancy rate on both the federal appellate and district courts. Tobias says President Obama was initially slow to put forward nominations.
"The President will not nominate people if he doesn’t have home state senators’ support," Tobias says. In fact, Senators are supposed to take the first step and nominate judges from their home state. But Tobias says GOP senators and the President have not often agreed about proposed nominees.
And there's a stalemate over the D.C. Circuit Court of Appeals, which Tobias describes as the nation’s second most powerful after the Supreme Court – and not only because of the separation of powers questions that come up when Congress and the President disagree. Tobias says the D.C. circuit is also "a springboard to the Supreme Court. Four present Justices have sat on the D.C. Circuit."
Currently, the D.C. Circuit has four judges chosen by Democratic presidents, four by Republicans. There are three vacancies and Senate Republicans have threatened to filibuster the nominees.
Senate Majority Leader Harry Reid says Democrats agreed to move forward several conservative judges nominated by President George W. Bush in exchange for a moratorium on filibusters for future nominees. Now, Reid is threatening what’s called the “nuclear option” – dumping the filibuster requirement of 60 votes to move a nomination forward. Critics howl, but a filibuster is a Senate rule, not a constitutional requirement. But the threat guarantees the fight over judicial vacancies is likely to continue.
And the fight isn't just at the appeals court level. More than one-in-ten seats are vacant on federal district courts as well.
But not in California, where there is no vacancy on the Central District Court, which serves the greater Los Angeles area. And there's just one vacancy among the two dozen or so seats on the Eastern District Court, which serves the Inland Empire. There are two vacancies in the Northern District and one in the Southern District.
The Eastern District is waiting for the White House to announce a nominee for a vacant seat.
This is one of the busiest courts in the nation. In fact, in a letter from the American Bar Association last week, the Eastern District is said to have "astronomically high caseloads" and should be expanded. Given the fight over the budget, that's not likely to happen any time soon. The immigration reform measure passed by the Senate, but not the House, would add three judges to the Central District.
Correction: An earlier version of this story said the Eastern District Court has been waiting for a nominee from California's junior Senator Barbara Boxer for a year.