Thursday, February 17, 2011


Sarah Binder has a post up at the Monkey Cage today responding to my recent piece on judicial nominations and a bit of empirical research by John Sides. I recommend it, and also her new Brookings study with Russell Wheeler, which looks in detail at which factors seemed to influence where nominations were made and where they were confirmed during the first two years of Barack Obama's presidency. Takeaway: the Obama administration has been much more likely to make nominations for openings in which the local Senators are Democrats.

Even in the best of circumstances, however, not all vacancies received a nominee during the 111th Congress, and the conclusion of the Brookings study is that the data suggest "the priorities of the federal judiciary do not bear heavily on the work of the White House in finding nominees or on the work of the Senate in confirming them.

I do want to respond to a couple of points Sarah makes in her post. She argues that the percentage of vacancies receiving a nominee over the full two-year period of a Congress is a better measure than what I used in my piece, which was just the current number of openings without an appointment. Actually, I'm not sure either is ideal; a better measure might also incorporate the time it takes between announcements of vacancies and White House action. For comparison's sake, any, or perhaps some combination, of these measures is probably okay. But I think this is one case where, in assessing the president, it's pretty straightforward: if there are currently 99 openings and only 45 nominees, along with 20 announced future vacancies with zero nominees pending, then there's something seriously wrong.

The second point is that Sarah puts a little more emphasis than I do or John does, I think, on Senate resistance rather than White House lack of initiative, using as evidence her finding that Obama has nominated judges most promptly when the local Senators were Democrats. I think that's a fair point. But it's also something that points to serious structural problems in an era with high levels of partisanship, a 60 vote Senate, and strong interest by some very noisy interest groups in judicial nominations. Solutions to that problem may prove hard to come by. The question of Obama's relative lack of attention to the judiciary (along with that of Democrats in the Senate), on the other hand, seems to me to be quite a bit less structural. In other words, while the general issue of judicial nominations is structural, a large chunk of what's happened over the last two years, and continues now, is simply Barack Obama's fault.


  1. I think you're understating the case when you say it's Obama's fault.

    Since he clearly could have done things differently, I think it's fine to assume that he's getting the outcome he wants. My guess is that he would prefer a more conservative bench than your average Democrat. Since he can't get that easily, he can achieve the same result by inaction.

  2. On the one hand, I want to stand by the old rule of thumb of assuming incompetence over malice. It could just be he only has limited time and he thought the caseloads could wait. On the other hand, he WAS a constitutional law scholar, so if anything you'd expect him to overestimate the importance of the judiciary not underestimate it.

  3. That's kind of an iffy assumption. I mean, he won't necessarily get a more conservative bench by not appointing anyone. Actuarial tables are what they are, but he can't be sure more liberal judges are going to retire. Moreover, the appointments he HAS made are hardly outside of the Democratic mainstream. Nor are his public statements on judicial/legal issues. So I dunno, that seems like drawing in a lot of lines.

    More likely, it's just that this administration is- or at least, has been- a Legislative-first Presidency. So many of the principles have legislative experience, and there's plenty of other examples of Obama being slow to use executive powers. He's even said he thinks the courts are a poor system for major social change. And hell, when you had 59-60 votes in the Senate, it was probably a decent time to prioritize legislation. No good reason why he couldn't do both (you mean to tell me most of these seats don't already have a basically automatic nominee?), but that's probably the explanation, at least.

  4. (Indeed, I think this data backs up that idea. The WH was much more likely to fill seats when the local Senators were Dems? Sounds like thinking about legislative allies to me).

  5. Adding to Colby's points, Obama pretty clearly frontloaded his legislative efforts, using a window of opportunity unlikely to recur any time soon. Given finite time, every hour of effort put into tougher judicial fights was one hour less put into the legislative fights. So he settled for the fairly easy judicial picks, e.g. with local Dem Senators.


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