The Jury is Out on Obama’s Fight to Confirm Judges

The next major showdown in Washington may not be over how best to reduce the deficit or involve another Obama cabinet appointment. Look for sparks to fly over the president’s constitutional prerogative to nominate federal judges and the Senate’s responsibility to either confirm or reject those nominees.

The latest manifestation of this is President Obama’s decision to fill three vacancies on the U.S. Court of Appeals for the District of Columbia Circuit, a frequent stepping stone to the Supreme Court. The president said he is merely fulfilling his constitutional responsibility as president, but Republicans are accusing him of “packing the court.”

Clearly, the courts are anything but packed. In fact, more than 10 percent of all judgeships are unfilled.  There are 87 vacancies, up from the 55 when Obama first took office.

To fully appreciate the significance of this standoff, it is important to remember that in their effort to radically shift the nation to the right over the past two decades, Republicans have gone all out to control the federal judiciary by placing young, arch conservatives on the bench.

According to a March 5 report by the Alliance for Justice titled, “The State of the Judiciary: Judicial Selection At the Beginning of President Obama’s Second Term,” Republican appointees still control the federal judiciary.

However, the study found, “Since the end of the Bush Administration, the percentage of Republican-appointed circuit judges dropped from 61.3% to 51.2%, and the percentage of Republican-appointed district court judges dropped from 58.6% to 53.6%.”

Political affiliation isn’t the only thing that is changing.

“President Obama’s nominees have been the most diverse in terms of race and gender in American history,” according to the report. “Forty-one percent of his appointees have been women and 36% have been people of color, a far higher percentage than any of his predecessors.”

Bill Clinton had the second-best record, with 29 percent of his appointees women and 24 percent people of color.

Obama’s record would have been even more impressive had he made nominations at the same pace of his immediate predecessors.

The Congressional Research Service (CRS) issued a report on May 2, titled, “President Obama’s First Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan.”

It noted, “President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).”

There is plenty of blame to go around for such a slow confirmation pace, beginning with Obama.

“… Of the 81 circuit or district court vacancies that existed at the end of President Obama’s first term, 50 (or 61.7%) were vacancies for which, as of January 19, 2013, the President had not selected a nominee,” the CRS study found.

And even when Obama did submit names, the study found, his confirmation rate was lower than most of his immediate predecessors.

“Among the first five Presidents during their first terms… President G.H.W. Bush had the greatest number of circuit court nominees confirmed, 42. President Reagan had the greatest percentage of circuit nominees confirmed during his first term (86.8%). In contrast, President Obama had the second-lowest percentage of circuit court nominees confirmed (71.4%) and is tied with President Clinton for having the lowest number of circuit nominees confirmed, 30.”

There was a similar pattern with district court nominees, with Obama having the second-lowest number and percentage confirmed.

Although Obama has done an impressive job appointing nominees who reflect racial and gender diversity, he has not done as well with professional diversity, according to the report by the Alliance for Justice. While Obama has appointed 99 ex-prosecutors, he has nominated only 33 former public defenders and 16 former academics.

Á professionally diverse judiciary better reflects the range of legal and societal experiences that judges bring to the bench,” the report observed. “A judiciary heavily slanted toward former corporate attorneys and prosecutors lack the perspective of lawyers who have represented clients in criminal defense, consumer and environmental protection, personal injury, and other public interest fields.”

Unlike Republicans, Obama has tended to nominate older candidates to the bench, averaging 51.3 years old. That’s typically 2-5 years older than Republican appointees. And that could come back to haunt Democrats in the future.

“Because federal judicial appointments are for life, Republican presidents have repeatedly nominated people under 50 to circuit court seats, and in fact have placed a premium on selecting

Young nominees,” the Alliance for Justice study stated. “As for district court seats, President Reagan nominated over 30 people under 40 years old to the district court bench, while President Obama has nominated only 5.

“Since young district court appointees are often prime candidates for subsequent elevation to the circuit courts, both President Obama and future Democratic presidents may have relatively few of these potential nominees to consider going forward.”


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