The Washington Post reports that liberal activists are upset that President Obama has yet to place his stamp on the federal courts. The Administration has been very slow to make judicial nominations and has not spent much political capital to get its nominees confirmed.
As of last week, President Obama had only made 26 nominations to the federal courts, only three of which had been confirmed (including Justice Sonia Sotomayor). By comparison, President Bush had made nearly 100 60 judicial nominations by this point in his first year. As noted before, President Obama’s appellate nominees have also been somewhat older than those of his predecessors, and despite much talk of the need for nominees from “outside the box” nearly all of his appellate nominees are sitting judges. [For lists and data on Obama's nominees see here and here.]
Why have there been so few nominees? One possibility is that those responsible for identifying and vetting nominees have been occupied with other things, including the Sotomayor nomination. The Administration is pushing numerous major initiatives which necessarily consumes staff time and attention. Further, key posts in the Justice Department remain unfilled, which could further stretch political appointees. Some veterans of previous administrations with whom I’ve spoken, also believe that the Administration’s decision to centralize so much decision-making in the White House Counsel’s office (which is also preoccupied with issues of its own) could contribute to a bottleneck.
Another possibility is that the Administration is showing more deference to individual Senators, and that this has further slowed the nomination process. The article quotes an Administration representative saying they are “working closely with members of Congress to identify a set of uniquely qualified judicial nominees with diverse professional experiences.” It’s also possible that judicial nominations are just not much of a priority right now.
The Post article observes the glacial pace of nominations has been matched by the Senate’s laggardly rate of confirmation. Other than Justice Sotomayor, the Senate has only confirmed two Obama nominees, one district and one appellate nominee. According to the Post, this is “largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.” Republicans have sought to delay some confirmation votes in order to more fully vet some Obama nominees, and I am sure there have been some Republican holds, but “filibuster threats”? I don’t buy it. If Senate Democrats hold ranks they have a filibuster-proof majority. So the only way a “filibuster threat” has much force is if there are Democratic defections. Furthermore, quite a few Republicans have indicated their reluctance to filibuster any but the most controversial nominees – and Obama’s judicial nominees to date have not been particularly controversial.
It seems to me that with confirmation, as with nominations, the problem has been that the Senate has been preoccupied with other matters, and that the Obama Administration has not signaled that confirming judges is a major priority. The White House has yet to make much of an issue of the Senate’s failure to confirm Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, and it has been even quieter on judges. Further, without much of a backlog of nominees, there is less pressure to push some through the process. Yet the backlog on some federal courts with numerous vacancies is substantial.
There are approximately 90 vacancies in the federal court system, and there could soon be more. Senator Leahy is pushing legislation to create additional federal judgeships, as requested by the Judicial Conference of the United States. This would give President Obama a substantial opportunity to place his stamp on the composition of the federal courts. Yet without nominees, he’s unlikely to have such influence.
“The White House predicts that nominations and confirmations will pick up soon,” the Post reports. We’ll see.