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,

Sheldon Goldman et al., Obama's Judiciary at Midterm: The Confirmation Drama Continues, 94 Judicature 262, 263–264 (2011).

Over the course of his two terms, Obama influenced some circuits more substantially than others when it came to improving gender diversity.

With respect to other impacts on aspects of circuit composition, one analysis of Obama's first term identified seats in 7 of the 12 geographic circuits in which Obama's appointee replaced a judge appointed by a Republican judge. Susan B. Haire et al., Presidents and Courts of Appeal: The Voting Behavior of Obama's Appointees, 97 Judicature 137, 142 (2013).

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.

P. S. Ruckman, Jr., The Supreme Court, Critical Nominations, and the Senate Confirmation Process, 55 J. Pol. 793, 796 (1993).

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.

Kevin McGuire, Lawyers and the U.S. Supreme Court: The Washington Community and Legal Elites, 37 Am. J. Pol. Sci. 365, 373–374 (1993).

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.

See generally, Maya Sen, How Judicial Qualification Ratings May Disadvantage Minority and Female Candidates, 2 J. L. & Cts. 33(2014); Susan Navarro Smelcer et al., Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees, 65 Pol. Res. Q. 827 (2012).

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.

Susan B. Haire, Rating the Ratings of the American Bar Association Standing Committee on Federal Judiciary, 22 Just. Sys. J. 1, 8 (2001); Sen, supra note 24, at 34; Maya Sen, Minority Judicial Candidates Have Changed: The ABA Ratings Gap Has Not, 98 Judicature 46, 51–53 (2014).

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.”

Alison Frankel, Breaking the Law Clerks’ Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski, Reuters (Dec. 13, 2017, 4:36 PM), https://www.reuters.com/article/us-otc-kozinski/breaking-the-law-clerks-code-of-silence-the-sexual-misconduct-claims-against-judge-kozinski-idUSKBN1E72YX [https://perma.cc/K2GX-6NT4]. Recent sexual harassment allegations about a federal judge targeting his female law clerks have highlighted the vulnerability of clerks in general and female clerks in particular, which tends to advantage men. Dara E. Purvis, When Judges Prey on Clerks, N.Y. Times: Opinion (Dec. 12, 2017), https://www.nytimes.com/2017/12/12/opinion/law-schools-alex-kozinski.html [https://perma.cc/JBT4-THWN].

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.

Slotnick et al., supra note 5, at 399.

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.

Haire & Moyer, supra note 1, at 63.

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.

Bob Egelko, Obama Nominations Heavy on Ex-prosecutors, SFGate (Feb. 3, 2013, 11:40 PM), https://www.sfgate.com/nation/article/Obama-nominations-heavy-on-ex-prosecutors-4248122.php [https://perma.cc/M4SD-USBJ].

Of course, some nominees’ career paths have taken them through both prosecutorial and judicial roles.

See supra Table 4c.

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.

Of this group of women, one was the first Asian-American woman appointed to an appellate position: Jacqueline Nguyen.

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.

Haire & Moyer, supra note 1, at 40; Am. Bar Ass’n: Comm’n on Women in the Profession, A Current Glance at Women in the Law 2016 at 2 (2016), https://www.americanbar.org/content/dam/aba/administrative/women/current_glance_statistics_may2016.pdf [https://perma.cc/3YZA-CDP7]; Epner, supra note 9, at xi.

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.

Slotnick et al., supra note 5, at 400.

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,

Colleen Flaherty, More Faculty Diversity, Not on Tenure Track, Inside Higher Ed (Aug. 22, 2016), https://www.insidehighered.com/news/2016/08/22/study-finds-gains-faculty-diversity-not-tenure-track [https://perma.cc/W2L5-WQJF].

Obama's strategy to diversify the bench coincided with a time of intense polarization

See e.g., Christopher Hare & Keith T. Poole, The Polarization of Contemporary American Politics, 46 Polity 411 (2014); Andrew Kohut et al., Pew Res. Ctr., Trends in American Values: 1987–2012—Partisan Polarization Surges in Bush, Obama Years (2012), https://assets.pewresearch.org/wp-content/uploads/sites/5/legacy-pdf/06-04-12%20Values%20Release.pdf [https://perma.cc/8JU7-PJ8L].

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.

The measure does not take into account nominations to the Federal Circuit, so it does not include the confirmation of Kara Farnandez Stoll in January 2015.

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.

Elliot E. Slotnick, Appellate Judicial Selection During the Bush Administration: Business as Usual or a Nuclear Winter?, 48 Ariz. L. Rev. 225, 227 (2006).

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.

Id. at 179.

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.

Boyd, Lynch, and Madonna find that after the rules change (although before Republicans won the Senate in the 114^th Congress), Obama's judicial nominees were confirmed more quickly than they had before invoking the “nuclear option.” Christian L. Boyd et al., Nuclear Fallout: Investigating the Effect of Senate Procedural Reform on Judicial Nominations, 13 Forum 623 (2015).

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,

Charles M. Cameron et al., Senate Voting on Supreme Court Nominees: A Neoinstitutional Model, 84 Am. Pol. Sci. Rev. 525 (1990); Lee Epstein et al., The Changing Dynamics of Senate Voting on Supreme Court Nominees, 68 J. Pol. 296 (2006).

This shift toward more roll call votes has increasingly affected judicial nominations as well. Since 1965, Supreme Court nominee votes have been recorded,

Charles M. Cameron et al., Voting for Justices: Change and Continuity in Confirmation Voting 1937–2010, 75 J. Pol. 283, 286 (2013).

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.

The shift toward increased roll call votes coincides with an increase in interest group participation for lower court nominations and increased polarization among senators. Id. at 121–122; Lauren Cohen Bell, Senatorial Discourtesy: The Senate's Use of Delay to Shape the Federal Judiciary, 55 Pol. Res. Q. 589, 591–596 (2002); Cameron et al., supra note 58, at 285.

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

E.g., Holmes et al., supra note 14, at 43.

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).

The data for committee delay for Bush and Clinton appointees are from Holmes, Shomade, and Hartley. Holmes et al., supra note 14.

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.

However, during 2016, two women and one man were reported favorably out of the Senate Judiciary Committee but not did not receive a vote on the Senate floor. One of the women, Lucy Koh had previously been unanimously confirmed to a federal district court position in 2010 and was the first Korean-American woman confirmed to an Article III judgeship. Slotnick et al., supra note 5, at 399.

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.

Asmussen, supra note 63, at 611.

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.

Interestingly, the only woman of color nominated by Clinton who received a roll call vote was Sonia Sotomayor, who garnered only 68 “yes” votes in spite of her “well qualified” rating and prior experience as a U.S. District Court judge and prosecutor.

Figure 5