An early chance for the Obama administration to reshape the nation’s judiciary -- and counter gains made in the federal courts by conservatives -- appears close to slipping away, due to a combination of White House inattention and Republican opposition.
During President Obama’s first year, judicial nominations trickled out of the White House at a far slower pace than in President George W. Bush’s first year. Bush announced 11 nominees for federal appeals courts in the fourth month of his tenure. Obama didn’t nominate his 11th appeals court judge until November, his 10th month in office.
Moreover, Obama nominees are being confirmed at a much slower rate than those of his predecessor, largely because of the gridlocked Senate.
Key slots stand without nominees, including two on the D.C. Circuit Court of Appeals, the body that reviews decisions by federal agencies and a court that is considered second in importance only to the Supreme Court. Federal judicial vacancies nationwide have mushroomed to well over 100, with two dozen more expected before the end of the year. To date, the Obama administration has nominees for just 52 of those slots, and only 17 have been confirmed.
For almost three decades, conservatives and liberals have been warring over control of the federal courts. By the time Bush exited the White House, Republican presidents had appointed 60% of the nation’s federal judges and seven of the nine justices on the Supreme Court.
Liberals believed they had found a champion in Obama.
That hasn’t happened. “It’s just a missed opportunity,” laments Geoffrey Stone, a professor at the University of Chicago who has known Obama since he lectured at the school. “I don’t know how committed he is to it.” Stone was one of a dozen law professors from schools including Harvard, Yale, Columbia and Stanford who sent Obama a letter late last month urging him to act with “far more energy and dispatch” on the issue.
Other matters have clearly taken priority in the Obama White House, including healthcare and economy. Obama’s top lawyer, Gregory Craig, who departed in November, was consumed with issues such as the Guantanamo Bay prison. The judicial nomination machinery has cranked up under his successor, Robert Bauer, and now the administration is trying to make up for lost time. The White House named two new appeals court judges just last week.
“The president has moved swiftly to fill vacancies considered to be judicial emergencies, and the pace of nominations overall has significantly increased in the new year,” said Ben LaBolt, a White House spokesman. “When brought to a floor vote, the president’s nominees have passed with strong bipartisan support.”
But much of the rest of this year in the Senate will be consumed with finishing the healthcare overhaul and more job-creation legislation, making time for floor votes scarce. The fall brings a congressional election, where the balance of power in the Senate could shift. If the Democrats lose seats -- or if Republicans take control of the body -- then Obama likely would be forced to appoint centrist judges more acceptable to the GOP. The same fate befell President Clinton after the 1994 election.
Obama’s defenders say he already approaches nominations with a nonpartisan perspective.
“President Obama has taken his time in making judicial nominations out of respect for the judicial office,” said Douglas Kmiec, a former Reagan administration lawyer. “While some prior presidents sought to ‘pack the bench’ in a hurry for solely political purpose, President Obama has applied what I would call an ethic of justice to his nominations.”
Of course, Obama can claim one high-profile success: the newest Supreme Court justice, Sonia Sotomayor. Liberals were also encouraged when Obama last month nominated Goodwin Liu, a professor at UC Berkeley, to the 9th Circuit Court of Appeals in San Francisco. Because Liu is expected to face significant GOP resistance, his nomination signals to some that the White House is prepared now to fight for more controversial choices.
Obama may also be facing a battle over his choice for the 2nd Circuit Court of Appeals, Robert Chatigny. Republicans are questioning Chatigny’s conduct in a serial-killer trial.
Judge confirmations have become like any other piece of legislation on the Hill. Democrats argue that the GOP leadership is requiring time-consuming cloture votes -- motions to cut off debate that need 60 votes to pass and then often require hours of floor time to be spent before a final vote can be taken -- on judges that are unopposed.
Earlier this month, Republicans required a cloture vote on Barbara Keenan, a nominee to the 4th Circuit Court of Appeals in Richmond, Va. After that vote, Keenan was confirmed by a 99-0 tally.
By contrast, more than half of Bush’s judicial nominees were confirmed by voice vote or unanimous consent. Democrats consented to their confirmation without requiring time to be spent on a roll-call vote on the Senate floor.
Republicans counter that if Senate Majority Leader Harry Reid and the White House believed judges to be a priority, they would use their clout to push them through. Reid controls the Senate calendar.
But a spokesman for Reid, Jim Manley, rejected that notion, saying the necessary cloture votes would chew up time on a Senate calendar already under duress from healthcare and jobs bills.
Christi Parsons and David G. Savage in the Washington bureau contributed to this report.