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.
erp says:
Decisions on everything, including the war in Afghanistan, hinges on the election next month. Apparently focus groups aren’t giving the WH the answers they want... and we thought Clinton was bad!
Oh well, what’s the difference if some soldiers die before Obama gets off the spot. It’s not like the media is keeping count on front pages as they did before he was elected and they could keep the heat on Bush.
Quote
October 18, 2009, 11:39 amgeokstr says:
Fisrt, the assault on the Constitution, then appointing the rubber stamps. Gotta get your priorities straight.
Quote
October 18, 2009, 12:10 pmerp says:
Did you forget the s/off?
Quote
October 18, 2009, 12:28 pmSuperSkeptic says:
Well, the confirmation of Sotomayor showed how weak democrats are versus republicans when it comes to shaping the dialogue about the judiciary. Turns out, the American people don’t seem to want judges that pick and choose winners for them, they’d prefer “the law” pick the winners and losers. Sotomayor was quick to line up with the traditional narrative, dropping her wise latina act, and assuring us that she “applys the law.” I suspect his judicial appointments to continue to be under the radar to the greatest extent possible as long as that is the case.
Quote
October 18, 2009, 12:31 pmBart DePalma says:
Inexperience and incompetence. Team Obama still also hasn’t filled its political posts.
Quote
October 18, 2009, 12:32 pmtroll_dc2 says:
This is a most interesting paragraph in the story, don’t you think?
I have never understood why the Democrats do not see judgeships as crucial. It matters who is making the decisions, at the district-court level as well as at Supreme Court. Why are they so stupid?
Quote
October 18, 2009, 1:19 pmUVA 2L says:
There’s a long list of things I learned at the DC District Court this past summer, but the one most relevant to the topic at hand is that the judiciary needs its vacant spots filled. The case load for individual sitting judges is ridiculous (!!!).
I’m not necessarily making a case for increasing the number of judges overall. I’m just saying that, when you have a sizeable portion of seats unfilled on a court and the court badly needs judicial manpower, it’s ridiculous not to get on the ball about it, especially when you consider that the outcome of most district court cases would likely not be genuinely affected by ideology.
Quote
October 18, 2009, 1:41 pmPeter says:
This is a viciously partisan administration. Before the mid term elections,they will dump a whole boatload of nominees on the Senate. They will not miss the opportunity to put liberal judges on the bench. And despite what people say about ideology not being an issue at the district level, it is–liberal judges allow more lawsuits to survive dispositive motions, certify more class actions, and, as we have seen with the judiciary’s insistence on overseeing anti terror efforts, they also allow more suits that undermine the nation’s capacity for self defense. The good news is obama will get DESTROYED in the 2012 election, and it will be a long time before an anti american socialist liberal ideologue is again in the White House.
Quote
October 18, 2009, 1:53 pmerp says:
Peter, let’s hope you’re right.
Quote
October 18, 2009, 3:16 pmOrin Kerr says:
Peter,
Just so I understand, you don’t like the Obama Administration?
Quote
October 18, 2009, 3:45 pmCornellian says:
And now let us pause to give Peter a moment to catch his breath.
Quote
October 18, 2009, 4:02 pmArthurKirkland says:
With persuasive opponents such as Peter on the other side, how could someone of Barack Obama’s caliber avoid crushing defeat?
Aside to Prof. Kerr: I hope I am wrong in sensing a chance you are being sarcastic. Maybe you think the Threat to our Nation is something to joke about, but I believe many of those who comment here would not appreciate it.
Quote
October 18, 2009, 4:09 pmChrisTS says:
Peter = Drive By Shouter.
Quote
October 18, 2009, 5:17 pmwm13 says:
One of the Conspirators, I forget which, before the election, quoted some anonymous friends on Capitol Hill as saying that Obama is (i) VERY liberal and (ii) VERY indecisive. Most of what the administration has done (or left undone) fits that framework.
Probably also one should remember that political operatives of the ward heeler school, like Emanuel, don’t like liberal federal judges, because people with lifetime appointments don’t generate much in political contributions, and because decisions about things like school prayer tend to arouse the rubes to vote Republican.
Quote
October 18, 2009, 5:59 pmOrin Kerr says:
ArthurKirkland:
Can you try that again? I am not sure what you are saying about my comment, so I am not sure how to respond.
Quote
October 18, 2009, 6:05 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by Nancecy: Where are Obama’s Judicial Nominees? http://bit.ly/5AYtD...
erp says:
Ah, from the oh-so-non-judgmental left, it’s rubes who are aroused by school prayer to — gasp — vote Republican. It makes one long for the narrow-minded neanderthal VRWC. s/off
Quote
October 18, 2009, 6:26 pmtroll_dc2 says:
Nice try, but you get only half a point for your pun.
Quote
October 18, 2009, 6:37 pmChrisTS says:
WHY? I thought it was rather fun — much better than ‘driveby spewer’ which was my first thought.
Quote
October 18, 2009, 6:54 pmProsecutorial Indiscretion says:
It’s not just judges — there’s tons of chatter in my circles about the excruciatingly slow rate of U.S. Attorney appointments.
Quote
October 18, 2009, 7:48 pmPeter says:
I plead guilty to overdoing it.
The admin is liberal though, and as indicated by its attempts to get everyone from schoolkids to artists to preach the virtues of the dear leader, it is also partisan. Even Ted Sorensen said recently the permanent campaign stuff ought to stop.
It may be that justice dept officials are taking their time in order to make sure the president picks people who are (1) very bright, (2) young, (3) willing to remain on the bench and (4) very liberal but without a paper trail that proves it. If they were smart, they would push through a big fat pay raise for fed judges to make judgeships more attractive.
If the admin thinks there is a danger of Dems losing their filibuster proof maj in the Senate, there will be a deluge of nominees, perhaps after the el next year. I realize obama is unlikely to lose in a landslide in 2012, but I bet he doesnt win many purple states next time around, ie Indiana, Virginia. It may come down to Ohio again. Something tells me that Acorn will be still be getting fed funds in 2012 and that it will very active in the buckeye state.
I would expect articles presenting liberals as angry at obama will be a common theme at the WP during the next three and a half years. Makes him look moderate.
Quote
October 18, 2009, 7:48 pmArthurKirkland says:
Professor Kerr:
I probably shouldn’t attempt sarcasm layered on sarcasm. My primary barb was aimed at Peter; a secondary barb was aimed at those who perceive the current administration to be a Threat to our Nation.
Your comment was an innocent bystander.
Quote
October 18, 2009, 9:29 pmHouston Lawyer says:
He’s been too busy working on the Nobel Peace Price.
Quote
October 18, 2009, 10:44 pmR Gould-Saltman says:
How many trolls ARE there under that bridge?
Quote
October 19, 2009, 12:14 amerp says:
Et tu Peter.
Quote
October 19, 2009, 9:06 amInstapundit » Blog Archive » JONATHAN ADLER: Where are Obama’s judicial nominees?… says:
[...] JONATHAN ADLER: Where are Obama’s judicial nominees? [...]
troll_dc2 says:
So far as I know, there is only one official one on this Web site, and I’m it.
Quote
October 19, 2009, 10:26 amcubanbob says:
You mean the current administration isn’t a Threat To Our Nation? Wow! I guess everyone who actually pays taxes and isn’t dependent on government is a rube. The things you can learn on this blog.
Quote
October 19, 2009, 10:42 amBilgeman says:
Mr. Adler:
“Where Are Obama’s Judicial Nominees?”
Perhaps they are waiting for the Statute of Limitations to expire on their “youthful indiscretions”?
Quote
October 19, 2009, 11:07 amegd says:
What is really defensible about this situation?
There are a lot of vacancies on the various Courts that (presumably) serve important purposes. The judiciary is already (according to the Judicial Conference) overworked, so causing even more stress on the system is foolish.
It seems like this administration is more about showboating their legislation and good intentions than actually making sure the government continues to function effectively at one of it’s core missions, adjudicating disputes between citizens*. It’s also possible that someone could turn this into an indictment of progressivism as a whole.
* parties works better, I’m not suggesting that only citizens should have access to the courts, but citizens sounds better.
Quote
October 19, 2009, 11:24 amMike O says:
One possibility also is that they’re flaming idiots.
As such, do NOT encourage them to speed up their process!
Quote
October 19, 2009, 12:37 pmluagha says:
If only, if only the Republicans were actually using anonymous holds and filibuster threats to slow the proceedings to a crawl. It would be a dream come true.
If I had the magic power, the Republicans would hold up all Obama administration judicial nominations until Bush’s backlogged never-voted-on nominees were all confirmed and only then allow through some Obama justices.
Quote
October 19, 2009, 12:56 pmOren says:
Do we get to go back to Clinton’s nominees too?
Quote
October 19, 2009, 1:22 pmluagha says:
I have the magic power, not you. :) But Sure! I’m feeling magnanimous.
Quote
October 19, 2009, 2:23 pmOren says:
But is the point of your magic power to ensure that every President can appoint ideologically-compatible judges or that only your party gets the right to?
That would explain whether this magic is principled magic or more partisan bullshit magic.
Quote
October 19, 2009, 3:35 pmHere Doesn’t Come De Judge « Around The Sphere says:
[...] Jonathan Adler: 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. [...]
The Volokh Conspiracy » Blog Archive » Is the Greg Craig Watch Over? says:
[...] official. One question is how Craig’s departure will affect judicial nominations. As I’ve discussed before, the Obama Administration has been quite slow to nominate federal judges. One reason for this [...]
The Volokh Conspiracy » Blog Archive » Where Are the Judges? says:
[...] has announced nominees to the federal bench at relatively slow pace thus far, as I noted here and here. Now the lag is beginning to get more attention. As the NYT reported over the weekend: [...]
The Volokh Conspiracy » Blog Archive » Who’s to Blame for Nomination Bottleneck? says:
[...] for the slow pace? It depends on who you ask — and when you ask them. (My own take can be found here and [...]