Sarah Binder has a post up at the Monkey Cage today responding to my recent piece on judicial nominations and a bit of empirical research by John Sides. I recommend it, and also her new Brookings study with Russell Wheeler, which looks in detail at which factors seemed to influence where nominations were made and where they were confirmed during the first two years of Barack Obama's presidency. Takeaway: the Obama administration has been much more likely to make nominations for openings in which the local Senators are Democrats.
Even in the best of circumstances, however, not all vacancies received a nominee during the 111th Congress, and the conclusion of the Brookings study is that the data suggest "the priorities of the federal judiciary do not bear heavily on the work of the White House in finding nominees or on the work of the Senate in confirming them.
I do want to respond to a couple of points Sarah makes in her post. She argues that the percentage of vacancies receiving a nominee over the full two-year period of a Congress is a better measure than what I used in my piece, which was just the current number of openings without an appointment. Actually, I'm not sure either is ideal; a better measure might also incorporate the time it takes between announcements of vacancies and White House action. For comparison's sake, any, or perhaps some combination, of these measures is probably okay. But I think this is one case where, in assessing the president, it's pretty straightforward: if there are currently 99 openings and only 45 nominees, along with 20 announced future vacancies with zero nominees pending, then there's something seriously wrong.
The second point is that Sarah puts a little more emphasis than I do or John does, I think, on Senate resistance rather than White House lack of initiative, using as evidence her finding that Obama has nominated judges most promptly when the local Senators were Democrats. I think that's a fair point. But it's also something that points to serious structural problems in an era with high levels of partisanship, a 60 vote Senate, and strong interest by some very noisy interest groups in judicial nominations. Solutions to that problem may prove hard to come by. The question of Obama's relative lack of attention to the judiciary (along with that of Democrats in the Senate), on the other hand, seems to me to be quite a bit less structural. In other words, while the general issue of judicial nominations is structural, a large chunk of what's happened over the last two years, and continues now, is simply Barack Obama's fault.