By February 2002, President George W. Bush had nominated 89 judges to the lower federal courts. This week, Senate Judiciary Chairman Patrick Leahy prodded President Obama, who has nominated just 42 federal judges to date, to “get up names as quickly as possible.” President Obama promised to make this “a priority.” He’d better.
There are currently 102 vacancies on the federal bench. Of these, 31 constitute “judicial emergencies”—vacancies that have severely threatened a court’s ability to handle its workload. Before the end of the year, there will be dozens of additional openings on the lower courts (20 have already been announced) and, in all likelihood, one and perhaps even two Supreme Court vacancies to fill. With an energized Republican Party, the loss of a filibuster-proof majority, and a scary-looking midterm election in November, Obama faces a difficult task in filling these vacancies this year. But this is it—when is he likely to have a better opportunity?
Obama has a difficult road ahead partly because of his failure to act swiftly on nominations during his first year in office. In 2009, Obama nominated 33 judges to the district and circuit courts, and the Senate confirmed 12. These numbers are, in a word, pathetic. New obstructionist tactics by Senate Republicans are partially to blame. But Obama deserves some blame, too; the paucity of nominees made it hard to scream too loudly about the lack of confirmations. The Senate’s Republican leadership capitalized by making Majority Leader Harry Reid fight hard for every single confirmation vote for a judicial nominee, even when nominees ended up getting confirmed unanimously. Preoccupied by passing health care, Reid had trouble finding the floor time even to move the nominees.
All told, a shaky first-year performance. Now is the time to turn things around. Quickly. The Clinton administration also started slowly on judicial nominations, facing tough politics on confirmation in 1994. Clinton picked up the pace of nominations, confirmed 98 lower court judges and a Supreme Court justice, and cut by two-thirds the number of vacancies that amounted to judicial emergencies. This is the model.
The White House has made changes in its judicial nominations team, starting at the top with the installation of a new White House counsel, Bob Bauer. Bauer will oversee and coordinate judicial nominations in an administration that has more assembled expertise on judicial nomination and confirmation issues than any in history. His job is to marshal this talent efficiently and to keep the nomination train running on time, which apparently proved impossible once his predecessor Gregory Craig started to lose his grip on the White House counsel job.
The Supreme Court’s thunder crack of a ruling in Citizens United, killing campaign finance reform, has also provided the president and his base with the clearest indication since Bush v. Gore of how much courts and judicial nominations matter. Conservative legal activists stand ready to challenge every aspect of the president’s agenda in court, just as soon as these measures get through Congress. Citizens United also provides a powerful rejoinder to the argument that conservative judges can be trusted to adhere faithfully to constitutional text and history. It’s a useful club for Obama to wield in responding to Republican claims that it’s his nominees who will be the judicial activists. It was Justice Sonia Sotomayor who stood on the side of constitutional text and history and judicial restraint in Citizens United, by voting to uphold a century worth of laws that place special limits on corporate election spending.
President Obama’s spirited response to Citizens United has usefully energized his base. So now let’s direct that energy toward the confirmation of more Obama judges. Another reason to take heart: Last year’s two major confirmation battles—over Supreme Court Justice Sonia Sotomayor and 7th Circuit Judge David Hamilton—provided important political victories to the administration. Justice Sotomayor was confirmed 68-31, and polls showed that Americans supported her throughout the confirmation process. When the Republicans tried to filibuster Judge Hamilton, Obama’s very first judicial nominee, they gathered only 29 votes, and 10 Republicans joined every Democrat in favor of an up-or-down vote. The national press subsequently slammed the senators supporting obstruction hypocrisy in denouncing filibusters under Bush and then using the procedure at the first opportunity.
With partisanship in Washington at a fever pitch, what kind of nominees should Obama tap? It’s always hard to describe in the abstract. But the sensible path is for Obama to avoid deliberately provocative nominations while being willing to fight for brilliant, highly qualified, younger nominees who share his views about the Constitution and the law and will be the cornerstone of his judicial legacy. So far, he’s succeeded well in the former task while failing for the most part in the latter.
At the moment, one rumored nominee who plainly fits the young, brilliant, hyper-qualified category—Goodwin Liu, a former Rhodes scholar, Supreme Court clerk, and litigator, who now serves as associate dean at the University of California-Berkeley law school, Boalt Hall, and has yet to turn 40—was reported to be “poised” for nomination to the 9th Circuit weeks ago, yet now seems to be in limbo. Yes, the president must choose judges carefully. But the Sotomayor and Hamilton confirmations show that with the right nominee, a fight will help the administration politically, not hurt it.