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Bench Memos

NRO’s home for judicial news and analysis.

Judicial Vacancies



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Unless I’m missing something, it’s not an easy matter keeping track of existing vacancies and nominations. The webpage for DOJ’s Office of Legal Policy hasn’t been updated in over a year, and the Senate Judiciary Committee’s website has information as of August 1, 2005.

I’m grateful to a reliable source who has done the hard work of compiling the information. Here’s what it shows:

– As of today, there are 56 judicial vacancies — 19 for federal appellate courts, 36 for district courts, and 1 for the Court of International Trade.

– For the 19 appellate vacancies, there are 8 pending nominees. Two — Terry Boyle (CA4) and William Myers (CA9) — await a final Senate floor vote. Three others — William (aka Jim) Haynes (CA4), Brett Kavanaugh (CADC), and Henry Saad (CA6) — are still stuck in committee, despite having had their hearings 27, 22, and 31 months ago, respectively. The three other nominations were made in recent months.

– Of the 11 appellate vacancies for which there has been no nomination, two (one in CA4 and one in CA9) have been vacant for more than five years, two more (one in CA5 and one in CA9) have been vacant for more than one year, and two more (one in CA3 and one – vacated by John Roberts – in CADC) have been vacant for more than four months. (I’m just stating what I understand to be the facts. There may well be good reasons why there haven’t been nominations for these vacancies. For example, as I may explore in a later post, there’s little reason for the President to nominate someone to fill the Roberts vacancy on the D.C. Circuit before Kavanaugh’s nomination to that court is confirmed.)

– For the 36 district court vacancies, there are 19 pending nominees.

According to a Senate source, the White House and Senate Republicans are divided on strategy: The White House wants the Senate to process the nominees that it already has and (according to this source) has held back on formally making new nominations out of concern that Senate Democrats would camouflage their obstructionism on longstanding nominees by moving some of the new nominees. Senate Republicans, by contrast, would like to have the pipeline full of nominees. It’s easy to jump to the conclusion that the Senate Republicans’ approach is the right one, but, for reasons I hope to address in later posts, the matter is more complicated.



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