Tuesday, July 31, 2012

Being a legal pundit seems like good work if you can get it.

Jeffrey Toobin has a post at the New Yorker about how: (a) no more circuit court nominations will be voted on until after the election; and (b) that President Obama has not been very active about making nominations to the Federal judiciary.  We posted about President Obama and judicial vacancies here

While it certainly seems true that President Obama's nominations are not getting confirmed at the same rate as those of Bill Clinton or George W. Bush, it is not clear to me that the rate of vacancies without an appointment is different under President Obama.  Assuming that it is, Mr. Toobin writes that, "The President’s lethargy on the matter of judicial nominations is inexplicable."  Inexplicable in Mr. Toobin's sentence should be defined as "Mr. Toobin did not ask anyone associated with the President for an explanation."  I feel reasonably confident that there is an explanation.  But the beauty of punditry is that one can just call something one does not feel like researching "inexplicable" and leave it at that.

In any event, Mr. Toobin's post did inspire me to look at this website to see where the judicial vacancies are located.  There are three vacancies that have been vacant for more than six years.   Of these, only one is considered a "judicial emergency":  that vacancy is the one caused by Judge Malcolm Howard taking senior status in the United States District Court for the Eastern District of North Carolina

How does a seat go vacant through all of George W. Bush's second term and all of President Obama's tenure? The only thing I can think of is that the district is assigned to have four district court judges.  However, based on the preferences orders on the district's website, it appears that three senior judges are actively hearing cases.  So perhaps the district isn't really short on judges.  Of course, this does not explain why Presidents Bush and Obama did not want one of their own nominees to fill the seat.  However, as Mr. Toobin points out, we cannot expect explanations for the inexplicable.

Finally, I note that Wisconsin, Iowa, Hawaii, Puerto Rico (as well as some other pretty nice places) all have vacant judgeships without a replacement nominee.  We really need the someone at the White House to start reading this blog.

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