Federal Courts and Nominations

Duh, it is president’s job to nominate judges: Column

It is time for the Senate to do its job by confirming D.C. Circuit Court nominees.


Last week, to great fanfare, President Obama gave a Rose Garden address to announce he was … just doing his job.


Specifically, President Obama announced that he was nominating judges to three seats on the D.C. Circuit Court of Appeals, one of which has been vacant since President George W. Bush elevated Chief Justice John Roberts to the Supreme Court. To understand why such a mundane — and constitutionally-mandated — presidential act required a Rose Garden address, and generated such apoplexy on the right, requires a little background on the badly broken judicial confirmation process and some understanding of what is at stake with these nominations.


President Obama began his first term with a vow to “put the confirmation wars behind us.” He has tried to make this a reality by nominating hyper-qualified moderates with bipartisan credentials and support, but he has still been faced with unprecedented obstruction of his nominees by Senate Republicans. Senate Republicans have been holding even Obama’s uncontroversial judicial nominees hostage for months, if not years. According to a recent report from the Congressional Research Service, “more than half of President Obama’s uncontroversial confirmed judicial nominees (for both circuit and district court judgeships) waited 200 or more days to receive Senate approval.” Less than one-third of President Bush’s uncontroversial nominees waited that long.


These obstructionist efforts have been particularly brazen when it comes to the D.C. Circuit. Senate Republicans repeatedly filibustered Caitlin Halligan, forcing Obama to withdraw her nomination. While they confirmed Sri Srinivasan to the eighth of 11 seats on the court, they simultaneously announced their intention not to let Obama fill any of the three remaining vacancies.


That is what led to the Rose Garden address: the president understands that to overcome Senate obstruction of his judicial nominees, he must make Republicans defend their arguments in the spotlight of national scrutiny. These arguments wither in the light of day. For example, Senate Republicans argue that the D.C. Circuit is underworked, even though the court handles some of the most difficult and complex questions presented to the federal judiciary. It is also the inconvenient truth that just a few years ago many of these same Republican senators pushed hard to confirm President Bush’s nominees to these very same seats.


The assertion that President Obama is attempting to use these appointments to advance his policy agenda gets it exactly backwards. Dating back to President Reagan, Republican presidents have filled 15 of the last 19 vacancies on the D.C. Circuit and nine of these nominees remain in service as active or senior judges. These conservative presidents have used this important court as a training ground for Supreme Court nominees — Roberts, along with Justices Scalia, Thomas and Ginsburg were elevated from the D.C. Circuit — and as a home for committed opponents of health, labor and environmental safeguards. Because the D.C. Circuit has the exclusive power to hear many types of cases involving these safeguards, these judges have the power, on any given day, to issue rulings that send Obama’s agenda into a tailspin.


In this context, President Obama does not need judges who will advance a progressive agenda. He simply needs judges who will uphold validly enacted laws and reasonable regulations. This is reflected in his nominees, two of whom served in the Department of Justice under President George W. Bush and all of whom have been given the American Bar Association’s highest possible ranking.


President Obama has done his job. It’s time for the Senate to do theirs.


Doug Kendall is founder and president of Constitutional Accountability Center.




This article appeared in at least the following additional outlets:


*  The Pensacola (FL) News Journal (online)


*  The Louisville (KY) Courier-Journal (online)


*  The Vineland (NJ) Daily Journal (online)


*  The Poughkeepsie (NY) Journal (online)


*  The Chillicothe (OH) Gazette (online)


*  The Zanesville (OH) Times Recorder (online)


*  The Newark (OH) Advocate (online)


*  The Coshocton (OH) Tribune (online)


*  The Stevens Point (WI) Journal (online)


*  The Green Bay (WI) Gazette (online)


*  The Manitowoc (WI) Herald Times Reporter (online)


*  The Wisconsin Rapids (WI) Tribune (online)


*  The Marshfield (WI) News-Herald (online)


*  The Wausau (WI) Daily Herald (online)


*  The Appleton (WI) Post-Crescent (online)


*  The Oshkosh (WI) Northwestern (online)

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