It’s no secret that the composition of the federal appeals courts can have a significant impact on the quality and type of justice that is dispensed in the United States. During his presidency, George W. Bush nominated scores of new judges, placing a high priority on filling judicial vacancies. In contrast, the numbers for President Obama so far do not lie: it’s hard to argue that he has made filling judicial vacancies a similarly high priority. This is the subject of two recent articles on the problems this listlessness creates, one by the political scientist Jonathan Bernstein, the other by Carol Williams of the Los Angeles Times.
Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.
If the current rate of replacing retired, resigned and deceased judges continues, Assistant Atty. Gen. Christopher H. Schroeder warned, nearly half of the 876 federal judgeships could be vacant by the end of the decade.
The way I see it, there are multiple causes of this. One is obstruction of nominees by Senate Republicans as retaliation for Democrats blocking Bush nominees during the previous administration, as Williams reports earlier in her article. Another cause is President Obama’s apparent slowness/indifference to doing anything about it. Williams reports that one reason it’s possibly taking longer is that President Obama is having nominees evaluated by the American Bar Association, a practice our previous president rejected. She also points out that analysts said President Obama and the Senate has had two Supreme Court confirmations to handle, and that this has bogged down the works for everything else.
While both of these things are true, it’s clear that it did not have to be that way. President Bush had to contend with several things that took up quite a bit of his time in the first two years of his presidency, notably the aftermath of Sept. 11 and his ill-fated drive for war in Iraq. And yet he managed to appoint federal judges through it all. The pace continued even when both the White House and the Senate were working on Supreme Court confirmations to replace the late Chief Justice Rehnquist and retired Justice Sandra Day O’Connor.
I agree with Bernstein then, who writes:
[T]he Senate isn’t particularly likely to push hard on them unless the president makes it a priority. Obama, no question about it, has not. Every week that goes by in which he doesn’t even bother to nominate anyone for all those openings is a week in which he signals to Senators that his administration just doesn’t care very much about the courts.
The important thing to remember here is that this is in one important respect unlike Democratic obstruction while George W. Bush was president: right now, and throughout this 111th Congress, every one of Barack Obama’s nominees probably has the votes to be confirmed. And I’m not talking about 50 votes plus Joe Biden; I’m talking about the Senate gold standard, 60 votes, enough to beat a filibuster and invoke cloture…
That doesn’t mean that GOP obstruction isn’t a factor, but it’s a factor that Harry Reid, Pat Leahy, and Barack Obama could easily overcome if they decided to make it a top priority. There’s still plenty of time to confirm every single one of the current nominees if Democrats really want to do that and are willing to be as aggressive in their use of Senate rules on offense as the Republicans have (quite legitimately, for the most part, in my view) in their attempts to obstruct. They won’t do it, however, unless Barack Obama sends clear signals that he wants it done. And if they don’t, well, who knows what’s going to happen in the 112th Senate? So, Mr. President, are you going to step up on this one?
President Obama, in my opinion, has every ability to speed up this process, at least on his end by getting nominees over to the Senate. If he does that, then at least he has a little more leverage in showing to the Senate that he does care, and that he’s holding up his end of the bargain in trying to fill vacancies by sending qualified nominees to the Senate. Certainly obstruction is a huge issue that is at play here, but that doesn’t even affect the ability of President Obama to at least get the process rolling — the ball is always in his court to get it started.
Ultimately, the danger is that the federal courts will cease to function well, as Justice Kennedy warned in Williams’ article:
“It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”