President Obama has a remarkable opportunity to remake the federal appellate bench. As I explained in this article, in a single term President Obama could nominate almost as many circuit judges as President Bush did in two. Indeed, President Obama could have a greater effect on the circuit courts than on the Supreme Court. Yet to accomplish this, the President has to actually make some nominations.
To date President Obama has made only five nominations to the U.S. Courts of Appeals. Three of these judges have been reported out of committee; none have been confirmed. Moreover, as David Fontana and Micah Schwartzman note, President Obama’s appellate nominees are significantly older than those of his predecessors.
This seems like a substantial missed opportunity — at least thus far. By comparison, President Bush made eleven appellate nominations in May 2001, and several more shortly thereafter. Admittedly, the folks who vet potential judicial nominees have had other things to do, but the Bush folks were also preparing for a potential Supreme Court nomination early in their term (albeit one that did not materialize). I’m not complaining — as a general matter, I’m more favorably inclined toward Bush’s nominees than those President Obama is likely to put forward — but it is interesting to observe that the Obama Administration could be missing an opportunity to put its stamp on federal appellate courts. Perhaps this is a consequence of trying to do so much, so fast. With the stimulus, health care, cap-and-trade, and everything else, who has time for judges?