But the responsibility for Obama’s failure to make a dramatic impact on the courts does not lie completely with the Senate. There are currently seventy-four vacancies on the circuit and district courts, and Obama has nominees in place for thirty-two of these seats—in other words, less than half of them. The Senate cannot confirm judges who were never nominated in the first place. (I wrote about this tendency early in Obama’s term.) It is true that Obama has often tried to “pre-clear” judges with Senators before formally nominating them; unlike recent Republican Presidents, he has also agreed to allow the American Bar Association to vet nominees. Those processes slow things down. Still, by neglecting the judiciary, Obama has limited his own legacy as President.Yes, yes, and yes.
The President’s lethargy on the matter of judicial nominations is inexplicable. So is his silence on the subject. George W. Bush complained loudly when he felt Democrats in the Senate had delayed or obstructed his judicial nominees. Obama has said little. Indeed, Bush had a public judicial philosophy as President, frequently calling on judges to “strictly apply the Constitution and laws, not legislate from the bench.” As a former president of the Harvard Law Review and long-time lecturer at the University of Chicago Law School, Obama has a great deal of familiarity with legal issues but hardly ever talks about them. His legal philosophy, if he has one, is unknown.
Republican obstruction on judges has been unprecedented. There's really no question about that. But as I've said too many times, if the president doesn't make things like this a priority -- and let everyone know it's a priority -- then it's not going to happen.
That was especially the case during the 111th Congress, when the votes were there in the Senate to get every single judicial nominee confirmed. What was lacking was the effort. Yes, it would have taken some floor time to do it, but it's not as if the Senate used up all the available floor time, and had Harry Reid threatened to use nights and weekends, there's a very good chance that the Republicans would have folded their bluff. That's less the case when at least some nominees didn't really have 60 votes during the current Congress, but even then that's only a handful of cases. And when it comes to time, if there's one thing the current do-nothing Congress has plenty of, it's excess floor time.
The one culprit I'd add here, on top of the Republicans and Obama, are liberal activists and interest group leaders, who in many cases (not all!) just ignored the problem.
It's just a really, really big deal, and one that will cost liberals for a long time, especially if Obama loses this fall. And if he wins: is he, and are liberal activists, prepared to make the judiciary a higher priority?