Bench Memos

Vacant Analysis?

In a Slate essay, Dahlia Lithwick and law professor Carl Tobias try to “scar[e] your pants off with some strictly nonpartisan facts about the dangers of judicial vacancies.”  Some of what I’ve said about Attorney General Holder’s op-ed applies to their essay as well.  I’ll limit myself to a couple of additional comments:

1.  One basic fact that Lithwick and Tobias don’t see fit to include is how the current judicial vacancy rate compares with rates in the past.  If the rate has been at or near the current rate in the past, then I’m not sure why we should find the current rate so scary.  I haven’t found a convenient summary of the judicial vacancy rate over time, but I do see that there were 101 vacancies in December 2001—basically the same as the 104 reported earlier this month. 

2.  Lithwick and Tobias also state:  “Depending on who’s doing the calculations, the average length of time between being nominated and confirmed has more than quadrupled in the Obama administration.”  But apart from the strange notion that the mathematical reality could depend on “who’s doing the calculations,” their assertion is simply wrong:  The source they cite (in the hyperlink) isn’t comparing the “time between being nominated and confirmed.” He’s comparing the time between “being favorably reported out of” committee and being confirmed. 

As Lithwick and Tobias recognize (and as I’ve explained here), overall time from nomination to confirmation is the far more sensible benchmark.  According to the Brookings Institution’s Russell Wheeler (in this report from yesterday), the average time to confirmation for those Obama nominees who have been confirmed is 134 days for district-court nominees and 232 days for circuit-court nominees.  The comparable figures for Bush 41 nominees were the exact same 134 and a teeny bit higher 236. 

So the alleged possible quadrupling wouldn’t seem to qualify as a “strictly nonpartisan fact.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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