Sustained Outrage

Judicial nominees and the midterm election: Now what?

(AP Photo/Charles Dharapak)

Elections have consequences, politicians like to remind us, usually after a big win. Within that simple phrase lies an implicit threat to those who find themselves outside looking in at the corridors of power: You’re going to need to get used to a new way of doing business.

Last week’s election saw Republicans retake control of the U.S. House of Representatives, and although they made inroads in the Senate, Republicans fell short of achieving a 51-vote majority. Thanks in part to Joe Manchin’s victory in West Virginia, Democrats still hold 53 seats in the Senate (including two independents who caucus with the Dems).

So what effect will the election have on President Obama’s judicial nominees?

The short answer: Probably not much.

Democrats had already lost their 60-seat super majority that, at least in theory, enabled them to easily overcome any threat of a GOP filibuster. Over the past two years, Republicans have proved very adept at preventing nominees from getting up and down votes, as have Democrats in the past when they were in the minority.

Just before the election, President Obama once again made reconciliatory overtures at Congressional Republicans in his weekly address. Obama was specifically calling on leaders to focus on the economy as the main issue confronting Americans, but I think his remarks can apply as well to confirming nominees.

On these issues – issues that will determine our success or failure in this new century – I believe it’s the fundamental responsibility of all who hold elective office to seek out common ground.  It may not always be easy to find agreement; at times we’ll have legitimate philosophical differences.  And it may not always be the best politics.  But it is the right thing to do for our country.

That’s why I found the recent comments by the top two Republican in Congress so troubling.  The Republican leader of the House actually said that “this is not the time for compromise.”  And the Republican leader of the Senate said his main goal after this election is simply to win the next one.

I know that we’re in the final days of a campaign.  So it’s not surprising that we’re seeing this heated rhetoric.  That’s politics.  But when the ballots are cast and the voting is done, we need to put this kind of partisanship aside – win, lose, or draw.

In the end, it comes down to a simple choice.  We can spend the next two years arguing with one another, trapped in stale debates, mired in gridlock, unable to make progress in solving the serious problems facing our country.

A lot of people, including the Federal Bar Association, would put the more than 100 vacancies in the federal judiciary among the serious problems facing our country.

So would Bloomberg’s Ann Woolner, who wrote in a column published earlier this week that said that Republican gains in the Senate would make it easier for the GOP to block Obama’s nominees:

Pushing the judiciary rightward has been a staple of Republican campaigns for decades.

Part of the strategy, used by both parties, is to block judicial candidates named by a president of the opposite party. This became easier last week for Republicans, who were already doing quite well at it.

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices.

This matters a lot. Whether the issue is health care, immigration or regulation, federal judges will decide which provisions are constitutional and which ones must die.

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

After discussing the qualifications of Albert Diaz, a North Carolina judge who was nominated for a seat on the U.S. Court of Appeals for the 4th Circuit by President Obama more than a year ago, Woolner continues:

That Republicans seem to be forever stuck in backlash mode is remarkable given that their nominees dominate the federal appeals courts that shape case law across the country.

Republican appointees have a majority in eight of the 13 appellate circuits. Democratic nominees constitute the majority in three. Two others are evenly split.

If Obama were to fill every vacancy, the partisan balance of those courts would shift from Republican to Democrat in only one circuit.

Nationwide, 59 percent of the country’s federal judges were put on the bench by Republicans, according to the Alliance for Justice.

As for the only court whose rulings affect the whole country, the U.S. Supreme Court, five of the nine justices were named by Republican presidents.

Writing in The American Prospect, Jamelle Bouie noted that some of the blame lies with the Obama administration, which hasn’t seemed to put much emphasis on nominating and confirming federal judges.

It’s not entirely clear why Obama has been so slow to nominate judges, but there are a few possibilities. For one, this administration has taken a different approach than its predecessor; Bush was never keen on conferring with senators — particularly Democratic ones — before submitting nominees. In a particularly high-profile case, then-Minority Leader Harry Reid released a statement asking President Bush to consult the Senate before offering his choices to fill a vacancy on the Supreme Court. Obama, by contrast, has taken a more traditional approach, working with Republican senators to choose acceptable nominees for their respective states. Of course, this hasn’t made confirmation any easier — Republicans still filibuster his choices, but Obama continues to consult them.

Obama has also reinstated the practice of soliciting evaluations from the American Bar Association’s Standing Committee on the Federal Judiciary, which has weighed in on candidates for the federal bench since 1948. The process is rigorous but slow moving; it can involve at least 40 interviews per nominee. To much criticism from the mainstream legal community, Bush announced at the beginning of his presidency that he would no longer provide the ABA with names of candidates for appointment to federal judgeships prior to their nomination, thus eliminating another barrier to speedy nominations and broadening the pool of potential nominees. Whereas Obama might decline to submit poorly rated nominees to Congress for confirmation, Bush simply didn’t care.

The Obama administration’s lack of concern about the vacancy crisis also might owe to the fact that the left hasn’t put much emphasis on preparing a ready group of potential nominees. On the other side, conservatives have invested a huge amount of time and effort in cultivating a large group of potential federal judges. Bush drew many of his judicial nominees — including his first choice for the Supreme Court, John Roberts — from the conservative Federalist Society. And while the Federalist Society has something of a liberal counterpart in the American Constitution Society, progressives lack the conservative zeal for shaping the federal judiciary and as such, haven’t put much pressure on the administration.

Bouie really drives home why the growing number of judicial vacancies presents a major problem to the courts, and therefore to average Americans, calling Obama’s neglect of the judicial nomination process “one of the biggest unforced errors of  his presidency”:

The consequences of an understaffed federal judiciary are hard to overstate. Not only are courts across the country struggling to handle growing dockets, some have stopped hearing civil cases altogether. The problem is particularly acute in border states — thanks to their large number of immigrants — and in places like the Eastern District of California, where long-standing vacancies and a large population have left the court overworked. A vacant court also encourages even further politicization of the confirmation process. With Obama increasingly unpopular, Republicans will want to “reserve” new and existing vacancies for when they control the White House. In the 112th Congress, the GOP will have every incentive to shut down the confirmation process for the duration of Obama’s first term.

The biggest losers in this game are the American people. For the last decade, a federal judiciary dominated by conservatives has mostly served to stack the deck in favor of wealthy and privileged interests. A recent study done by the Constitutional Accountability Center found that a cohesive five-judge majority on the Supreme Court has produced victories for the Chamber of Commerce in 68 percent of cases from early 2006 to late 2009. Doug Kendall, president of the Center, sees the status quo as dangerous for liberals and their priorities. “Over the next several years, health-care reform and every major initiative of the Obama administration will reach a federal judiciary dominated by conservative appointees,” he says. The judicial vacancy crisis could ultimately endanger Obama’s most important accomplishments.

Without new nominees, there isn’t much opportunity for turning the tide. “It’s important for the judiciary to have [ideologically] balanced courts,” says Nan Aron of the Alliance for Justice. “On most of the Circuit Courts, though, there is a predominance of Republican appointees with similar values and views, but no counterweight.” Worse, without a new set of younger judges, Democrats will miss out on a chance to build a liberal farm team for the Supreme Court. President Bush was able to pick from a deep bench of conservative appointees who made their way to the judiciary in earlier Republican administrations. Unless Obama and progressives act now to recruit new judges, future Democratic presidents won’t have that luxury.

More than a month ago, after Congress recessed to allow its members to hit the campaign trail before the Nov. 2 election, I wrote that the Obama administration might make the most of this period by submitting announcing his intention to nominate a slew of nominations candidates to the Senate Judiciary Committee. This would signal resolve on the president’s part concerning the federal bench, I suggested.

Can anyone guess how many candidates the president nominated announced during the five-week recess? If you said zero, you get a gold star.

(Corrected to reflect that the president cannot nominate while the Senate is in recess.)