Assessing President Obama's Appointment of Women to the Federal Appellate Courts

Table 1 lists each woman nominated by Obama who was confirmed to a life-tenured federal appellate judgeship, the date of the nomination, and the circuit in which they were seated. Although the Obama administration was the subject of some criticism for a slow start in nominations to the lower federal courts, ⁽¹⁶⁾ in his first year in office, Obama nominated four women, including one African American woman (Ojetta Rogeriee Thompson) to the First Circuit. ⁽¹⁷⁾ This was followed by two women in 2010, five in 2011, four in 2013, eight in 2013, and one in 2015.

Over the course of his two terms, Obama influenced some circuits more substantially than others when it came to improving gender diversity. ⁽¹⁸⁾ The Ninth Circuit added four women, as did the Eleventh Circuit; Obama's appointments were more consequential for the latter court, which has only 12 seats compared to the Ninth's 29 seats. Another court, the Fourth Circuit gained three women and, over the course of Obama's years in office, moved from a majority white-male court to one in which most of the judges were women, racial minorities, or both. ⁽¹⁹⁾

On the U.S. Supreme Court, observers have noted the traditional of designating particular seats for judges of certain groups. For instance, there have been lengthy periods in which there was unofficially a “Jewish seat” and a “Catholic seat” on the Supreme Court. ⁽²⁰⁾ Thus, it seems reasonable that Obama might have approached the task of filling vacancies with an eye toward the identity of the previous occupant. In their analysis of presidential replacement strategies for the lower federal courts, Solberg and Diascro concluded that Obama did not tend to view particular seats as “belonging” to nontraditional judges, but rather adopted a broader strategy of diversification. ⁽²¹⁾

To further explore variation in the women that Obama appointed to the appeals court bench, the next section examines two indicators of qualifications that are a focus of the confirmation process: law school pedigree and American Bar Association ratings.

McGuire notes that the prestige of a law school education can affect the trajectory of an attorney's professional career, including membership in the Supreme Court bar. ⁽²²⁾ In particular, an Ivy League pedigree is likely to serve as a heuristic that signals a nominee is “high quality.” Looking at Obama's successful appellate nominees, one third received their law degree from an Ivy League institution, similar to judges nominated by Bush and Clinton. ⁽²³⁾ Among Obama's 24 female nominees, seven (29%) earned an Ivy League law degree (four of those degrees were from Harvard, two from Yale, and one from Penn). A somewhat higher proportion of the men in Obama's appointment cohort (35%) earned their J.D. from an Ivy League institution.

Another way that the qualifications of judicial nominees are assessed is through the ratings assigned by the American Bar Association (ABA). Nominees are evaluated on the basis of three factors: temperament, integrity, and competence. The ABA's role in rating has been a longstanding part of the nomination process and has received its share of criticism for lack of transparency and bias against certain kinds of nominees. ⁽²⁴⁾ Generally, the White House sends the names of nominees to the ABA Standing Committee for evaluation, though under the George W. Bush administration, this was done instead by the Senate Judiciary Committee. ⁽²⁵⁾ During the Obama administration, White House officials returned to the practice prior to Bush and consulted with the ABA early in the nomination process. News reports at the time alleged that ABA ratings of “not qualified” may have scuttled the nominations of as many as 14 individuals considered by Obama, most of whom were women and/or racial minorities; a much higher proportion of Obama's nominees were rated as “not qualified” than nominees put forward by either Bush or Clinton. ⁽²⁶⁾

Table 2 shows the breakdown in ratings among Obama's nominees. Among those nominees who were ultimately confirmed, 70.8 percent of women and 87 percent of men nominated by Obama to sit on the federal appellate courts were rated as “well qualified” by the American Bar Association. Minority women were viewed less favorably in these ratings than their white female counterparts; three of Obama's five nonwhite female nominees were rated as merely “qualified,” but nearly 80 percent of Obama's white female nominees were deemed to be “well qualified.” Nonwhite women fared more poorly than nonwhite men, as 85 percent of the latter group received “well qualified” ratings (a statistically significant difference at p < .05). This is broadly consistent with other work that finds evidence of systemic disadvantages in the ABA rating scheme for racial minorities and women, though these studies did not examine women of color separately. ⁽²⁷⁾

Relative to George W. Bush, a comparable percentage of Obama's female nominees were rated by ABA as “well qualified” (both at about 70%). However, more of Clinton's female nominees had “well qualified” ratings than did Obama's. The trend for nonwhite women was also different under both Bush and Clinton, with more nonwhite women than men receiving “well qualified” ratings.

Experience as a law clerk can serve as a valuable stepping-stone to coveted legal jobs like judgeships and is often considered a marker of prestige and quality. Frankel observes that clerkships “can be a career-defining job for the elite law school graduates who win the intense competition for these posts.” ⁽²⁸⁾ Historically, white men have been the most common recipients of these opportunities, particularly with respect to Supreme Court clerkships. ⁽²⁹⁾ In one recent study of federal district court nominees, Sen finds that clerkship experience is much more common among African American district court nominees in the post-Clinton era, though there is not much change in women's experience over time. ⁽³⁰⁾

Overall, it appears that the Obama administration valued nominees with law clerk experience more than previous presidents. Nearly 70 percent of his appellate nominees had held a clerkship, compared to 48 percent for Bush and 45 percent for Clinton. With respect to women, under Obama, a higher percentage of female nominees (66.7%) had previously served as a law clerk compared to women appointed by either Bush (58.8%) or Clinton (40%). However, this difference is driven almost entirely by the experiences of Obama's white women nominees, 15 of which had been law clerks. Among women of color, Kara Farnandez Stoll was the only nominee to have law clerk experience, working under Judge Alvin Scholl of the Federal Circuit for one year before moving to private practice. It is notable that, out of the seven black women appointed by the three presidents, only three had law clerk experience, and none of these women was appointed by Obama. In comparison, nearly two-thirds of the minority men (comprising 5 African Americans, 2 Latinos, and 1 Asian-American man) appointed by Obama had law clerk experience.

In their review of Obama's judicial legacy, Slotnick, Schiavoni, and Goldman observe that Obama selected the highest proportion of individuals whose previous position before nomination was as a state or federal judge, as well as a record number of former prosecutors. ⁽³¹⁾ As seen in Table 4a, half of all women and 54 percent of men in Obama's appellate appointment cohort had prior judicial experience. However, looking among the female nominees, judicial experience was more common among women of color (80%) than for white women nominees (about 42%). Two of the five minority women (Bernice Donald and Jacqueline Nguyen) served in both state and federal judicial roles, but none of the 19 white female nominees had this experience.

When in viewed in comparison with the two prior cohorts of presidential appointees, it appears that, under both Democratic and Republican administrations, prior judicial experience has been something like an unofficial requirement for women of color. ⁽³²⁾ Under Clinton, all 5 nonwhite women had some previous judicial experience, and only two-thirds of white women had served as a judge. While Bush appointed fewer minority women (3), two of those three had prior judicial experience, compared to 57 percent of white women. ⁽³³⁾

Among those who served as prosecutors prior to being nominated by Obama, Table 4b shows little difference across most gender-race cohorts; white women, nonwhite women, and white men all had similar levels of experience (42%, 40%, and 42%, respectively), while half of the nonwhite men nominated by Obama had previously served as a prosecutor at the state or federal level. This emphasis on prosecutorial experience was not viewed favorably by some liberal interest groups. For instance, a 2013 news report highlighted concerns raised by the Alliance for Justice when Obama's appointments of former prosecutors to district and circuit court judgeships officially surpassed the numbers achieved by George W. Bush or Ronald Reagan. ⁽³⁴⁾

Of course, some nominees’ career paths have taken them through both prosecutorial and judicial roles. ⁽³⁵⁾ Overall, seven of President Obama's 15 appointees with both judicial and prosecutorial experience were women, a record identical to that of Clinton. In contrast, only two of George W. Bush's 12 nominees with both types of experience were women.

If prior judicial experience is more likely among women of color than white women, is this also the case for experience as both a judge and a prosecutor? The answer appears to be yes. Under Obama, 40 percent of nonwhite women had both judicial and prosecutorial experience, compared to about a quarter of white women. ⁽³⁶⁾ This trend holds for Bush and Clinton's appointments as well.

Outside of previous work as a judge, prosecutor, or law clerk, private practice has been a common training ground for federal judges, in spite of longstanding problems related to diversity and inclusion. ⁽³⁷⁾ Indeed, the vast majority of Obama female nominees (83%) had prior experience in private practice, similar to women appointed by the two previous presidents (82% for Bush nominees and 85% for Clinton nominees). Private practice experience was shared by four out of the five nonwhite women Obama appointed, as well as for 16 out of the 19 white women he seated. Interestingly, the white men appointed by Obama were less likely to have private practice experience than any other race-gender cohort, though the difference is not statistically significant.

Less common than private practice experience is previous experience in academia. Slotnick, Schiavoni, and Goldman show that after Reagan, presidents have tended to nominate proportionately fewer law professors to appeals court positions, perhaps as a reaction to the defeat of Robert Bork (a former Yale Law professor) in his nomination to the Supreme Court. ⁽³⁸⁾

Table 5b displays the breakdown of nominees with academic experience across Obama, Bush, and Clinton. In terms of absolute numbers, Obama was somewhat less apt to select nominees who had previously worked in academia, relative to his predecessors. (Twenty of Clinton's appointees and 24 of Bush's appointees had prior experience in academia, compared to 17 of Obama's appointees.)

Of Obama's nominees with academic experience, four of the six women who worked in law schools did so as adjunct, short-term, or visiting faculty. Bernice Donald, the only nonwhite woman appointed by Obama to have had academic experience, served as an adjunct professor for three years at Memphis State Law School (now University of Memphis Humphreys School of Law). The only women who served in tenure track positions were both white and taught at elite institutions: Pamela Harris taught at the University of Pennsylvania Law, and Cornelia Pillard was on the faculty at Georgetown Law. In contrast, more than half of Obama's male nominees with academic experience had full-time, tenure track positions at law schools. The difference in type of academic appointment may reflect broader trends in higher education, whereby increases in racial and gender diversity have tended to come in non-tenure track positions, ⁽³⁹⁾ and where structures and norms still tend to favor white men. ⁽⁴⁰⁾ These differences in academic experience could also reflect a gendered nomination strategy by the Obama administration, in which women with a track record of academic publications might be seen as offering too much of a “paper trail” for the confirmation process. There is no question that, over the past three presidential administrations, the Senate's confirmation process for lower court nominees has changed in ways that have made it more contentious; the next section addresses what these developments have meant for women nominated to be appellate judges.

Obama's strategy to diversify the bench coincided with a time of intense polarization ⁽⁴¹⁾ and partisan conflict resulting in unprecedented levels of obstruction and delay in the Senate confirmation process. ⁽⁴²⁾ To understand how the experiences of Obama's female nominees compared with others in their appointment cohort, it is vital to note several key developments that affected prospects for all nominees.

First, appeals court nominees have increasingly faced obstruction and delay in their confirmations. To operationalize these concepts, Slotnick and colleagues created a measure that is the number of nominations unconfirmed plus the number of nominations that took more than 180 days from nomination to confirmation. The index runs from 0 (no obstruction and/or delay) to 1 (complete obstruction and/or delay). Figure 2 shows how, from 1978 to 2016, the index of obstruction and delay goes from its lowest level in the late 1970s to complete obstruction and delay by the 114^th Congress when the Republicans won control of the Senate. ⁽⁴³⁾ As Senator McConnell has himself acknowledged, ⁽⁴⁴⁾ the new Republican majority adopted a strategy that would prevent Obama from naming any judges during the last two years. (This was in addition to McConnell's more public decision to prevent Supreme Court nominee Merrick Garland from receiving a vote in the Senate.) One Democratic staffer explained:

I think that what Mitch McConnell understands is that judicial nominations is a niche area that has a lot of influence over policy but he will never lose any votes over it. That's why he did what he did the last two years in filling judicial vacancies. That's why he had no compunction against holding up the Obama nominations process in the early years. He's internalized this because he's seen the way that this can advance his political agenda, and he knows that he's not going to get any blowback in the political sphere. ⁽⁴⁵⁾

Figure 2

Second, Obama judicial nominees’ experiences were impacted by the erosion of norms that had generally worked to ensure the efficient and timely confirmation of lower federal court nominees. Presidents have historically conferred with home state senators of the president's party on the selection of nominees for vacancies within those senators’ states; the Senate Judiciary Committee has also utilized the blue slip norm to secure the support of home state senators from both parties. ⁽⁴⁷⁾ While there has been some variation in how much deference was afforded to home state senators, ⁽⁴⁸⁾ scholars have noted an acceleration in the use of retaliatory blue slips through the end of the George W. Bush era and continued under Obama. ⁽⁴⁹⁾ Steigerwalt notes a number of examples of senators using the blue slip as a way to seek retribution for past nominees’ treatment and concludes that “[s]enatorial courtesy is thus being used as a weapon in institutional (and partisan) fights that look more and more like the normal politicking that characterizes the normal legislative process.” ⁽⁵⁰⁾

Another institutional practice that has affected the confirmation process for appeals court nominees is the filibuster. This tool aids the minority party by stopping all Senate business until 60 senators agree to invoke cloture, and it serves as a highly public and dramatic expression of opposition. ⁽⁵¹⁾ As Slotnick, Goldman, and Schiavoni detail, when Obama took office in 2009, Republicans were still smarting from filibuster defeats of two nominees to the DC Circuit (Miguel Estrada and Peter Keisler), and they responded in kind to Obama's efforts to fill the DC vacancies. ⁽⁵²⁾ Democrats, frustrated by the blockage of Obama's nominees to the DC Circuit and to the National Labor Relations Board, responded to calls from within their own caucus to push for a rules change to end the filibuster. Some of the senators who supported this change were new arrivals to the Senate and had not been in the minority before, while other “institutionalists,” like Patrick Leahy, were reluctantly convinced of the necessity of this rule change by the treatment of the DC Circuit nominees. One staffer on the Judiciary Committee pointed in particular to the nomination of a woman named Patricia Millett as a tipping point in changing his mind in favor of filibuster reform:

The filibuster of her nomination really troubled [Sen. Leahy], because he thinks long term . . . . But the change in demeanor from the summer, where we almost had a rules change . . . then we heard positive things being said about Patti Millett . . . nothing but positive things . . . . “She looks like an excellent candidate” becomes, in November, the same member [John McCain] who’d been involved in the Gang of Fourteen in 2005 came down to the floor [of the Senate] to say ‘I deem this an extraordinary circumstance.’ Her nomination, a completely noncontroversial nomination. We were trying to work with them [the Republicans].” ⁽⁵³⁾

This episode, and the Democrats’ reaction to it, highlight another trend that affected the fates of judicial nominees: eroding trust between the two political parties. ⁽⁵⁴⁾

Lastly, Obama's nominees went through the confirmation process in an era in which most floor votes on their nominations would be recorded via roll call. Whereas voice votes tend to indicate action by unanimous consent, ⁽⁵⁵⁾ roll call votes put individual members on the record. ⁽⁵⁶⁾ Scholars of Congress have observed the declining prevalence of the voice vote in both chambers, finding that electoral pressures influence decisions by members to record their votes. ⁽⁵⁷⁾

This shift toward more roll call votes has increasingly affected judicial nominations as well. Since 1965, Supreme Court nominee votes have been recorded, ⁽⁵⁸⁾ and studies have identified the 1990s as a turning point for how votes on lower federal court nominations are handled. ⁽⁵⁹⁾ Cohen notes that the 105th Congress (under Clinton) represented a highwater mark in roll call votes:

[N]ominees to federal judgeships were more likely than at any other point in history to be subject to a roll call vote for confirmation . . . . This may be the result of maneuvering by conservative Republicans; the Republican conference decided early in 1997 that judicial nominees were too important to confirm by voice vote. ⁽⁶⁰⁾

Since Clinton, the trend of recording votes on future judges has only accelerated. While only a quarter of Clinton's appellate nominees received a roll call vote, this shot up to 80 percent under Bush and then a staggering 87 percent under Obama. ⁽⁶¹⁾

Taking all of these factors into account, should we expect female nominees under Obama to be treated differently on the basis of their gender and/or race? The existing literature is mixed about the extent to which women and nonwhite nominees experience a lengthier and less successful confirmation process, with some finding a disadvantage for women and racial minorities ⁽⁶²⁾ and others failing to find any race or gender differences. ⁽⁶³⁾ To assess this descriptively, I examine a series of outcomes for appeals court nominees who were ultimately confirmed: time from nomination to confirmation, delay at the committee stage, whether a roll call vote was taken, and (for those who received roll call votes) the number of “yes” votes for the nominee.

Figure 3 plots two indicators of delay, the mean number of days a nomination stayed in the Judiciary Committee before being reported out (committee delay) and the mean number of days from nomination to confirmation (confirmation delay). ⁽⁶⁴⁾ Looking first at Obama nominees, white men had the least amount of committee and confirmation delay of any race-gender cohort (72 days and 166 days, respectively). White women experienced slightly more of both types of delay than white men, waiting about a week longer to be confirmed. However, women of color saw their nominations sit longer in committee than nonwhite men (108 days versus 93 days) and stretch out longer until confirmation than white women (217 days versus 173 days). While none of these differences are statistically significant under a t-test, they are suggestive of a distinctive and potentially more contentious process for minority women, at least those nominated by Democratic presidents. ⁽⁶⁵⁾

Figure 3

Overall, Obama's female nominees faced lengthier confirmation times than women nominated by the two previous presidents, waiting an average of 182 days compared to 141 days for Bush female nominees and 176 days for Clinton female nominees. With respect to delay in committee, Obama's female nominees actually fared better than women nominated by either Clinton or Bush. Nominations by Obama took an average of 82 days to be reported out of committee, while it took 110 days for Bush's female nominees and a whopping 141 days for Clinton's female nominees. This largely reflects the different political circumstances for each president related to divided government; Obama had a Democratic-led Judiciary Committee for all but two years of his time in office. ⁽⁶⁶⁾

Moving next to the method of voting on nominees, the literature suggests that both interest groups and the parties would have strong interests in requiring senators to take a recorded vote on Obama's judicial nominees. As noted above, 87 percent of Obama's nominees to the federal appeals courts received a roll call vote (compared to 25% of Clinton's nominees). How did this vary based on nominee gender? Figure 4 shows the percent of women and men whose nominations received a recorded vote. Apart from the dramatic shift from Clinton to the two more recent presidents, what is notable is that, regardless of party or president, a higher percentage of women are put up for roll call votes than men. Among Obama's successful nominees to the U.S. Courts of Appeals, all five women of color were confirmed via a roll call vote, the highest among any gender-race cohort. (This was also true for all of George W. Bush's nonwhite women.) Seventeen out of 19 white women (89%), 11 out of 13 nonwhite men (78%), and 15 out of 17 white men (88%) nominated by Obama also had roll call votes. Taken together, this suggests that there are perceived electoral benefits related to voting for women nominees and especially so for women of color, consistent with conclusions of past work. ⁽⁶⁷⁾

Figure 4

Among all those who did receive a recorded vote and who were ultimately confirmed, what differences were there in the number of “yes” votes received? Figure 5 shows a box plot of the distribution of votes to confirm each race-gender cohort of nominees; because of how few Clinton nominees received a roll call vote, the graph compares only Obama and Bush judges. There are some striking differences across groups. Notably, we see very little variation in the number of “yes” votes for minority women appointed by Obama, especially when compared to white women in the same appointment cohort. (The reverse is true for Bush women appointees.) Second, women of color appointed by Obama had the highest median number of “yes” votes of that appointment cohort, which is interesting given their lower ABA ratings. ⁽⁶⁸⁾ And while these findings should not be interpreted as representative of all those who were nominated, they do suggest that electoral incentives during the Obama years drove senators of both parties to support minority women's confirmation. It also suggests that the White House may have only opted to select minority women in whom they had great confidence of gaining bipartisan support. More research, using both successful and unsuccessful nominations, is needed to understand these dynamics more fully.

Figure 5