Carl Tobias

With Obama Proceeding Reasonably To Fill Federal Judgeships, the Bottleneck Is the Senate

By CARL TOBIAS
Friday, October 30, 2009

A growing drumbeat of commentary has recently criticized President Barack Obama for not acting quickly enough to fill the 96 present vacancies on the federal appellate and district courts. However, as I shall explain, closer evaluation of the record compiled by President Obama shows that these criticisms are actually unwarranted, and that responsibility should more properly be assigned elsewhere. In particular, blame should now be placed at the Senate's door.

Obama's Approach: Generally a Wise and Good One

Many observers have voiced numerous criticisms of Obama Administration judicial selection. Some have suggested that the President should nominate candidates more swiftly and in greater numbers. Others have criticized the nominees' age (saying they are too old), experience (saying there are too many judges among them), and ideological perspectives (saying they are too liberal or, in some instances, too conservative). A few observers have also compared the number of nominees (23) whom Obama has submitted with the number (95) whom President George W. Bush had submitted at the identical juncture of his administration.

Yet careful analysis of Obama's record shows that these criticisms lack merit. Before Obama won the election, he had already started planning for appointments. And when he was elected, Obama quickly installed as White House Counsel Gregory Craig, a respected attorney with much pertinent expertise, who immediately enlisted several talented lawyers to identify judicial designees. The administration also capitalized on Vice President Joseph Biden's four decades of Senate Judiciary Committee experience in the nomination process. Accordingly, the selection group anticipated and carefully addressed contingencies that might arise when choosing judges. For example, it compiled "short lists" of excellent candidates for possible Supreme Court vacancies, should one arise.

Obama has emphasized bipartisan outreach, particularly by soliciting the advice of Democratic and Republican Judiciary Committee members, and of high-level party officials from the states where vacancies arise, and by doing so before final nominations. Obama has gradually, but steadily, put forward his nominees, typically naming a few on the same day. This approach compares favorably with the approach of the two prior administrations, which often submitted large packages on the eve of Senate recesses, thus complicating felicitous confirmation. To date, Obama has nominated 23 well-qualified consensus candidates, who are diverse in terms of ethnicity, gender and ideology. This is sufficient quantitatively and qualitatively to foster prompt confirmation.

Often before, and invariably following, nominations, the administration and senators have cooperated. To facilitate approval of nominees, Obama worked closely with Senators Patrick Leahy (D-Vt.), the Judiciary Committee chair, who schedules hearings and votes, and Harry Reid (D-Nev.), the Majority Leader, who arranges floor consideration, and their GOP analogues, Senators Jeff Sessions (Ala.) and Mitch McConnell (Ky.).

Thus, the committee has swiftly assessed nominees, with thorough questionnaires and hearings and prompt votes. Indeed, Leahy convened hearings so fast that GOP members complained they lacked sufficient preparation time, and he quite reasonably responded with another session for a nominee.

The Real Problem Here Lies More with the GOP Senate Minority Than the President

The Democratic panel majority, thus, has expedited review, but the Republican minority has delayed processing. For instance, it routinely delays committee votes for a week with no or minimal explanation.

This recently happened with four California District Court nominees, three of whom the panel then unanimously approved. And, last week, Senator Sessions held over Virginia Supreme Court Justice Barbara Keenan, even though he had praised the jurist's qualifications at her hearing two weeks earlier and despite the fact that the U.S. Court of Appeals for the Fourth Circuit, to which she was nominated, desperately needs more judges, as the court is operating with five of its 15 judgeships vacant. In fairness, yesterday, Sessions explained that Keenan's responses to some GOP written questions were inadequate, but that she promptly furnished more complete answers that were satisfactory, again lauded the jurist as a "fine nominee," and supported the panel decision to vote her out without objection.

The committee has approved 14 federal court nominees, and the real bottleneck has been Senate floor action. Of those 14 nominees, only five have received floor debate and confirmation; nine are pending without GOP consent to consider them. Senator Reid has attempted to cooperate with Senator McConnell and Republicans -- but to no avail. For example, McConnell insisted that the Senate consider no lower court nominees until it had confirmed Supreme Court Justice Sonia Sotomayor, which delayed the process until September.

The unanimous consent procedure allows one senator to stop the entire body, and anonymous holds have delayed specific nominees' consideration. Reid has been reluctant to employ cloture, which forces votes, mainly because this practice wastes valuable floor time. However, on Tuesday, Reid took the unusual step of invoking cloture to secure a floor vote on Southern District of West Virginia Judge Irene Berger. She is the third uncontroversial judicial nominee on whom Reid has been forced to seek cloture. Indeed, the GOP has ratcheted up the stakes with the unprecedented action of placing holds on noncontroversial nominees.

Obama's Nomination Record Thus Far Is Strong Given Unusual Circumstances

The fact that Obama has nominated only 23 persons thus far to fill federal judgeships is not attributable to the White House or the Senate majority. Nor is the fact that of these, the Senate has confirmed only four lower court nominees. Justice David Souter's May resignation meant that filling his vacancy was a top priority, and that process consumed three months, during which lower court selection had to be temporarily frozen. The administration has, of course, also encountered the "start-up" costs of instituting a new government. Cabinet appointments consumed months, and the Senate has yet to confirm several Assistant Attorneys General nominees and many of the 93 U.S. Attorney nominees. There has also been a pressing need for the Obama Administration to address myriad intractable complications left by earlier administrations, such as the deep, continuing recession; Guantanamo; and the Iraq and Afghanistan conflicts.

For all these reasons, recent criticisms of President Obama for submitting judicial nominees too slowly are unfounded. Nor should the Senate Judiciary Committee majority be blamed: The panel majority has expedited its nominee processing, but the minority's virtually automatic reliance on holds has caused some delay. The true bottleneck, however, has been the nearly complete lack of floor consideration.

Senate Republicans must stop delaying floor action on the President's well-qualified nominees – nominees who typically have the blessing of the relevant states' senators. And, if Republicans in the Senate continue to delay, Senate Democrats should invoke cloture and related practices that will facilitate expeditious approval of Obama's nominees.


Carl Tobias is the Williams Professor at the University of Richmond.

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