By my count, there are only six pending courts of appeals nominees—Peter Keisler to the D.C. Circuit, Debra Livingston to the Second Circuit, both Jennifer Walker Elrod and Leslie Southwick to the Fifth Circuit, and both Raymond M. Kethledge and Stephen J. Murphy to the Sixth Circuit. Keisler had his confirmation hearing last July, and Livingston had hers a couple weeks ago—the only hearing that the Senate Judiciary Committee has held for an appellate nominee during the first third of 2007. Elrod, Southwick, Murphy, and Kethledge await their hearings.
Meanwhile, there are ten existing or imminent vacancies (not counting the twelfth D.C. Circuit seat) that await nominations. Many of these have been awaiting nominees for a long time. It’s difficult to be sure where the problem lies. In many of these cases, it may well be that the White House is trying to overcome unreasonable obstruction from supposed home-state senators. (I say “supposed” because the work of circuit judges is not tied to any particular state, and the law does not identify their seats by state.)
In any event, it’s worth noting that Senator Arlen Specter, the ranking Republican on the Senate Judiciary Committee, sent the President a letter on April 13 “urg[ing] the White House to move expeditiously in submitting qualified nominees” for the vacancies. “Expediency is crucial,” Specter stated, “given the length of time often involved in the confirmation process and the Congress’ pressing legislative agenda; therefore, it is imperative that the White House submit nominations without delay.” In a Senate floor statement today, Specter restated his concerns.
A key Senate staffer tells me that he finds the delays “truly unbelievable” and complains that the White House “seems to operate without regard for the realities of the legislative calendar.”