Federal Courts and Nominations

Obama determined to fill federal judgeships

The president plans to fight for Senate confirmation of his judicial nominees.

By Richard Wolf


WASHINGTON — Buoyed by re-election, President Obama is determined to make his mark on the federal judiciary after years of seeing nominees delayed or derailed by Senate Republicans.


To which those same Senate Republicans say: Good luck with that.


The latest battle in what has become a protracted war over federal judges focuses on 19 men and women whose nominations have been pending in the Senate for an average of eight months. Republicans declined to confirm any of them during the presidential election. Senate Republicans say the nominations will see a similar fate in the lame-duck session of the outgoing Congress.


That hasn’t stopped Obama from putting forward even more nominations in the wake of his re-election. Tuesday, he nominated three judges for the Eastern District of Pennsylvania, where six of 22 seats are vacant, including one that’s been empty since June 2009. Nationwide, nearly one in 11 federal judgeships remain vacant, and some courts are struggling with caseloads.


“President Obama understands that judges are … a long-standing part of his legacy,” says White House counsel Kathryn Ruemmler. “He’s acutely aware of that.”


The vacancies have the president’s liberal allies up in arms — and not all their aggression is aimed at Republicans. The White House, they say, has not always fought hard enough to get Obama’s nominees confirmed.


Obama’s judges “will last long after he leaves office,” says Nan Aron, president of the liberal Alliance for Justice. “We’re pleased that the president is mindful about his judicial legacy.”


The importance of the appeals and district courts is both numerical and strategic. While the Supreme Court handles about 80 cases a year, 55,000 cases are brought to the 13 circuit courts of appeals, and more than 300,000 are filed with district courts. The appeals courts form the “bench” from which most Supreme Court nominees are selected.


It’s a bench that President George W. Bush filled with generally young, conservative nominees. To the consternation of his allies, Obama has favored slightly older, more moderate judges, prosecutors and U.S. attorneys. After nearly four years in office, he has yet to reverse Republican dominance at the appeals or district courts.


What Obama has done is make the federal judiciary much more diverse. Of the 158 judges who have won confirmation, 44% were women, 19% African Americans, 12% Hispanics and 7% Asian Americans — much higher percentages than his predecessors achieved. The White House sees the new level of female and minority judges as a base from which future presidents will feel compelled to build.


As for Obama’s level of success getting nominees confirmed: 75% of his nominees have been confirmed, compared with 88% for Bush and 84% for Clinton. On average, they have waited 224 days in the pipeline, up from Bush’s 176 days and Clinton’s 98.


Democrats control the Senate with a 53-47 majority — increasing to 55-45 next year — but Republicans have continued to block action on judicial nominees. Republicans say it’s just the natural rhythm of the Senate, where Democrats did the same thing when they were in the minority.


As for continuing the impasse during the lame-duck Congress? “It’s because of Senate precedent,” says Judiciary Committee Chairman Chuck Grassley, R-Iowa. He blames an increase in judicial filibusters on Democrats who blocked several of Bush’s nominees, beginning in 2002. “That kind of set a higher bar,” he says.


Though most of Obama’s nominees have won eventual confirmation, a few have met a brick wall in the Senate. Obama’s nomination in 2010 of Goodwin Liu, who was then associate dean at the University of California-Berkeley School of Law, languished for 15 months before Republicans ultimately refused to grant him an up-or-down vote.


That stalemate pales compared with the fate of Caitlin Halligan, whose nomination to the U.S. Court of Appeals for the District of Columbia Circuit has been kicking around for two years. Twice blocked by Republicans, the general counsel for the Manhattan district attorney’s office has not given up, and the White House continues to press for her confirmation.


Republicans considered those nominees too liberal — Halligan had argued as New York solicitor general that firearms manufacturers should be held civilly liable for crimes committed with guns, and Liu had written that interpreting the Constitution “requires adaptation of its broad principles to the conditions and challenges faced by successive generations.”


Far less controversial appeals court nominees have been blocked despite enjoying bipartisan support. These include Robert Bacharach of Oklahoma and Bill Kayatta of Maine for seats on the 10th and 1st Circuit Courts of Appeals, respectively.


Armed with at least 41 votes, minority parties in the Senate long have used the filibuster to block people and policies they oppose.


Nominees with bipartisan support are sure to get confirmed eventually, says Curt Levey, president of the conservative Committee for Justice. “Republicans are not in any hurry to make it happen, but at the end of the day, they’re not going to stop non-controversial nominees,” he says.


Liberal groups say Obama needs to go to the mat for his nominees, much as Presidents Bill Clinton and Bush did during their second terms, to speed up the process. “You have to devote political capital to it,” says Doug Kendall, president of the liberal Constitutional Accountability Center.


The White House began that process two weeks ago by nominating eight judges at once, a week after the elections. “It was very intentional,” Ruemmler says. “We wanted to do it right when the Senate came back.”


Faced with a similar filibuster last January, Obama appointed Richard Cordray to lead the new Consumer Financial Protection Bureau while Congress was in recess, thereby installing him without Senate confirmation. That only hardened the GOP’s stance against his judicial nominees.


“I wouldn’t expect anything to change,” says Ed Whelan, president of the conservative Ethics and Public Policy Center. “The conservative base is now mobilized on judicial nominations in a way that the liberal base has long been.”

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone