U.S. Circuit Court Vacancies at the Beginning and End of the Obama Presidency: Overview and Comparative Analysis

U.S. Circuit Court Vacancies at the Beginning and End of the Obama Presidency: Overview and Comparative Analysis

This Insight provides comparative historical data related to U.S. circuit court vacancies that existed at the beginning and end of the Obama presidency (as well as at the beginning and end of the presidencies of his two most recent predecessors, Presidents George W. Bush and Clinton). This Insight also provides a geographic overview of the location of circuit court vacancies that existed on President Obama's final full day in office (i.e., on January 19, 2017), as well as the location of vacancies deemed "judicial emergencies" by the Administrative Office of U.S. Courts.

At present, Congress has authorized 179 circuit court judgeships. Vacant judgeships typically arise when a judge voluntarily retires, but can also occur by other means (such as when new judgeships are authorized by Congress).

Historical Vacancy Data

As shown by Figure 1, the number of circuit court vacancies during the Obama presidency increased from January 20, 2009 (his first day in office), to January 19, 2017 (his final full day in office). Specifically, there were 13 circuit court vacancies at the beginning of his term and 17 such vacancies at the end of his term—a 31% increase. In contrast, as shown by the figure, the number of circuit court vacancies decreased from the beginning to the end of the George W. Bush presidency (decreasing from 26 to 13, a 50% decrease). As occurred during the Obama presidency, the number of circuit court vacancies also increased from the beginning to the end of the Clinton presidency (increasing from 18 to 26, a 44% increase).

The size of the increase in the number of circuit court vacancies from the beginning to the end of the Obama presidency reflects, in part, the comparatively small number of circuit court nominations confirmed by the Senate during the final two years of the Obama presidency. Specifically, two circuit court nominations were approved during the 114th Congress (seven circuit nominations were returned to the President at the end of the Congress, including three nominations that had been pending on the Senate Executive Calendar).

In contrast, the Senate approved 10 circuit court nominations during the final two years of the George W. Bush presidency, while, during the final two years of the Clinton presidency, the Senate approved 15 circuit court nominations.

Other factors that contribute to the number of U.S. circuit court vacancies during any given presidency include the relative frequency by which active judges retire or assume senior status, and the number of nominations submitted by the President.

Figure 1. U.S. Circuit Court Vacancies at the Beginning and End of the Obama, George W. Bush, and Clinton Presidencies

Geographic Location of Vacancies at the End of the Obama Presidency

At least one U.S. circuit court vacancy existed in over half of the nation's regional U.S. courts of appeals on President Obama's final day in office (i.e., on January 19, 2017). Specifically, there were 17 vacant circuit court judgeships across 8 of the 12 regional circuits. Figure 2 shows the location of these vacancies, including the six circuits with multiple vacancies.

Of the 17 circuit court vacancies that existed on President Obama's final day in office, 7 (41%) had a nomination pending before the Senate at the end of the 114th Congress (i.e., on January 3, 2017)—4 before the Senate Judiciary Committee and 3 on the Senate Executive Calendar. Ten of the 17 vacancies (or 59%) had not yet had a nomination submitted to the Senate by the President.

Figure 2. U.S. Circuit Court Vacancies at the End of the Obama Presidency

(January 19, 2017)

Judicial Emergencies

Vacancies are classified as "judicial emergencies" by the Administrative Office of U.S. Courts based on various criteria, including the number of case filings per judgeship and the length of time a particular vacancy has existed. Figure 3 shows the location of vacancies, as of January 19, 2017, considered judicial emergencies.

Overall, of the 17 circuit court vacancies, 10 (59%) were classified by the Administrative Office of U.S. Courts as judicial emergencies on President Obama's final day in office.

Of the 10 vacancies considered judicial emergencies, 4 (40%) had a nominee pending before the Senate at the end of the 114th Congress (i.e., on January 3, 2017)—2 before the Senate Judiciary Committee and 2 on the Senate Executive Calendar. Six of the 10 vacancies (or 60%) had not yet had a nomination submitted to the Senate by the President.

Figure 3. U.S. Circuit Court Vacancies Considered Judicial Emergencies at the End of the Obama Presidency

(January 19, 2017)