Tuesday, July 31, 2012

Catch of the Day

To Jeffrey Toobin:

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.
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.
Yes, yes, and yes.

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?

Nice catch!


  1. Regarding the lack of noise from interest groups, it seems like part of the problem is that there isn't really a natural constituency to advocate on behalf of this and other process-intense issues. Plenty of people care deeply about gay marriage or the environment or abortion issues, but who gives deeply of their time and money to create a federal judiciary nomination process that runs more smoothly? It's just too wonky and unromantic.

    Coupled with this is that the obstructionism by Republicans has been, as you say, unprecedented. Whatever constituency might have been there to vocally nudge the president and his party perhaps wasn't prepared for this to even be a fight (though maybe they should have been).

  2. There's a saying in marketing that goes something like: if you have the leading brand in a category, you should never acknowledge your lesser competitors. Perhaps a related thing happens in politics: if a politician owns an equity, s/he should never place that equity up for discussion.

    For better or worse, Obama seems to have the whole consitutional law nerd thing cornered. Judicial appointments are like a box of chocolates, you never know what you're gonna get ("Paging John Roberts: your office is calling").

    If Obama can't enhance his image with an especially savvy appointment, since he already owns that equity, perhaps he is excessively risk-averse in the face of all the ways those appointments can disappoint, thus dragging his law geek cred down with a bad appointment.

  3. The recruitment of judges just isn't the simple, complimentary act it once was. The nominee must undergo an anal exam-like vetting, then have everything he or she has ever said twisted out-of-context obnoxiously, then wait for the feckless Senate to actually do its job, all while putting their professional life on hold indefinitely. I think Obama is being very careful with his judicial nominees, probably too careful, but it's somewhat understandable given the current political realities. Why nominate a judge who won't get a vote anyway?

  4. Obama has been grossly negligent in making nominations, but how many more judges would actually have been confirmed in the current 60 votes required for everything environment if he had made nominations for all of them? Not too many, I'd guess. We need to get rid of the routine filibuster so Senate and Presidential elections mean something again. It should be the job of voters not the Senate minority to hold Presidents accountable for bad nominations. I would only allow filibusters for Supreme Court appointments since those are lifetime jobs with an absurd amount of power in the hands of a determined ideologue.

  5. I just don't think there are good judges willing to sit through the two-year dead-end Senate process and enough White House staff to manage all the Senate inquiries. Just how much time and money should he waste on this? I don't know.

  6. Doesn't anyone remember this article from the Times last year, noting that the ABA has been giving Obama's nominees (especially minorities and women) a much harder time than they've given previous presidents? http://www.nytimes.com/2011/11/23/us/politics/screening-panel-rejects-many-obama-picks-for-federal-judgeships.html?pagewanted=all

    The upshot is that the ABA had given, by last November, 7.5% of Obama's nominees "unqualified" ratings, and only 2% of both Bush's and Clinton's. Couple that with the fact that Republican Senators have refused to cooperate with the White House in sending up district court nominees, or in sending in blue slips on circuit court nominees. If you don't believe me, check out how many vacancies there are for Texas and tell me that Cornyn and Hutchison have been cooperative, or Google the names Victoria Nourse and Louis Butler for examples of Ron Johnson's obstructionism.

    If you have to fill your quota of Obama bashing, do it on another issue. Judicial nominations, as this President has done it (with prior vetting by ABA and with consultation with Republican Senators), do not begin and end at the White House. Even more so than the filibuster, the blue slip process has to end to give the White House more autonomy to name nominees and get them a hearing.


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