Despite a solid Democratic majority in the Senate, President Obama is on pace to set a record for the fewest judges confirmed during a president’s first year in the White House.
So far, only six of Obama’s nominees to the lower federal courts have won approval. By comparison, President George W. Bush had 28 judges confirmed in his first year in office, even though Democrats held a narrow majority for much of the year. President Clinton put 27 new judges on the bench in his first year.
The slow pace of approving judges has gotten little attention while Democrats and Republicans have fought over healthcare, the budget and the economic stimulus bill. In mid-summer, Obama and the Democrats also won confirmation for Supreme Court Justice Sonia Sotomayor.
But liberal activists have voiced growing irritation that Republicans are quietly using their minority power to block Senate votes on Obama’s judicial nominees. They note that during the Bush administration, Republicans insisted the president’s nominees deserved up-or-down votes.
“This has become more bitter and more partisan than the Clinton years. It is obstructionism across the board,” said Nan Aron, president of the Alliance for Justice, an association of environmental, civil rights and consumer advocacy organizations.
The dispute is due to come to a head Tuesday, when the Senate votes on whether to cut off debate on Judge David F. Hamilton of Indiana, Obama’s first court nominee.
In mid-March, the White House trumpeted Hamilton’s nomination to the U.S. 7th Circuit Court of Appeals in Chicago and cited the choice as an example of “setting a new tone” and putting “the confirmation wars behind us.”
A veteran trial judge with the reputation of a moderate, Hamilton was the son and grandson of Methodist ministers in southern Indiana. The state’s well-respected Republican Sen. Richard G. Lugar also said he “enthusiastically supported” the nomination.
But Hamilton ran into a buzz saw of criticism from conservative activists in Washington. They noted he had worked for the American Civil Liberties Union before becoming a judge in 1994.
And they pointed in particular to two of his judicial decisions as evidence he was a liberal activist. In one, Hamilton blocked the Indiana General Assembly from opening sessions with Christian prayers. In a second, he blocked a state law from taking effect that set a mandatory waiting period for women seeking abortions.
Some Republicans also said they were not obliged to readily support Obama’s nominees because Democrats had blocked several well-qualified Bush nominees.
In June, Hamilton won approval on a party-line vote in the Senate Judiciary Committee. Since then, Republicans have refused to permit a floor vote on his confirmation.
Under Senate rules, court nominees need just a majority, or 50 votes. But the minority can refuse to agree to a deadline for ending debate.
The only option for Senate Majority Leader Harry Reid (D-Nev.) was to invoke “cloture,” which requires 60 votes. Such a motion also commits the Senate to as many as 30 hours of debate on the nomination.
Last week, Reid announced he would seek a cloture vote on Hamilton.
Sen. Jeff Sessions (R-Ala.), a leader of the Republican opposition, won applause Thursday from the conservative Federalist Society when he described the fight over Hamilton as a part of an ideological struggle over the judiciary.
“Today, we find ourselves at a legal crossroads,” he said. “We are in a struggle to determine whether or not the classical Western tradition of law will continue to exist.”
Liberal advocates scoffed at the notion that Hamilton was extreme or out of the mainstream.
“This is a terrific first nominee, a brilliant young judge with bipartisan support in Indiana,” said Douglas Kendall, president of the Constitutional Accountability Center. “In any normal world, he should be confirmed easily and unanimously.”
Among the other judicial nominees who are awaiting a final vote is Edward Chen, a U.S. magistrate from San Francisco who, if confirmed, would be the first Asian American district judge in the Bay Area.
Last month, a Senate committee approved his nomination on a party-line 12-7 vote. But Sessions cited Chen’s work for the ACLU before Chen became a magistrate in 2001.
“I think we’re seeing a common DNA run through the Obama nominees, and that’s the ACLU chromosome,” Sessions said.
That comment did not sit well with Chen’s supporters.
“It was a strange thing to say,” said Vincent Eng, deputy director of the Asian American Justice Center in Washington. “He has an eight-year record as a judge. They are trying to make him out as some radical.”
Nationwide, there are 98 vacancies on the federal bench. Obama has 19 nominees who are awaiting votes in the Senate.
Obama’s pace of nominating judges is also slower than previous presidents’.
Two of Obama’s picks for the U.S. Court of Appeals have been confirmed, along with four district judges.