Obomination: The White House’s Responsibility for Judicial Vacancies

Published Thu, Sep 1 2011 12:03 PM

The White House has turned to the word “unprecedented” again.  This time, Obama is claiming that Senate Republicans are responsible for the supposedly “unprecedented” judicial confirmation delays.  The real reason why the current president has not had comparable numbers of confirmations as prior presidents is because nominating judges has simply not been a priority for the Obama administration. 

With 2012 looming in the horizon, Obama has scrambled to put the blame for the record number of current judicial vacancies elsewhere.  The White House has turned to an infographic about “historic delays” in judicial nomination, claiming that “[t]he rising number of judicial vacancies is a direct result of unprecedented delays in the Senate confirmation process.”  Obama said, “[a] minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees.” Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has complained, “This is not how the Senate has acted in years past with other Presidents’ judicial nominees. Vacancies are being kept high, consensus nominees are being delayed and it is the American people and the federal courts that are being made to suffer.”  Similar arguments appear in various editorials, like The New York Times, The Washington Post, The Atlantic and Politico. 

There’s definitely someone who deserves the blame, but not who’s been in the media. Obama should take accountability for his failure to nominate.  Ranking Member Senator Charles Grassley (R-Iowa.) said, “It’s disingenuous to say Republicans are holding up the judicial confirmation process.”  Committee for Justice executive director Curt Levey told PBS that a judicial “vacancy may have existed for a long time because Obama was very slow to appoint a nominee.”  The Washington Post reported that “Obama was woefully slow in sending up nominations early in his term, nominating only 34 in 2009.”  According to Judicature, the Obama administration’s “judicial selection machinery suffered from organizational and coordination weaknesses.”  Former Chief Counsel of the Senate Judiciary Committee (under then-Chairman Orrin Hatch) Manus Cooney said, “there is not sufficient presidential leadership to force a focusing of the mind of policymakers to try to reach agreement.  There are nominees for less than half of the vacancies on the Federal Court…” 

Regarding the wait nominees have had to endure, Curt Levey set the record straight.  He said, “there are many of Bush's nominees who waited literally years after they got out of committee. There were some nominees who were waiting throughout most of the eight years. So the fact that there's only one out of the 20 who's even been waiting three months I think tells you that things are going fast.”  Ed Whelan wrote, “the delays encountered by the 15 district-court nominees on the Senate’s executive calendar are, in the aggregate, much shorter than the delays experienced by 39 of George W. Bush’s.” He added, “only seven of the pending district-court nominees are beyond the 180-day mark (from first nomination), whereas 34 of Bush’s 39 were.” Moreover, “only one of the pending district-court nominees is beyond the nine-month mark, whereas eleven of Bush’s were.”

Let’s not forget that the Senate is controlled by the same party as President Obama. The White House could have, but hasn’t, put pressure on Senator Reid to schedule votes, invoke cloture or even just ask for a time agreement on district judge nominations.  Further evidence of Obama’s poor judgment on nominations can be seen with selection of Liu and Chatigny, who were so controversial that that even Democrats did not want to take a vote.

Obama’s approach to judicial nominations has drawn criticism from the left. Eleanor Acheson, who managed the DOJ’s role in the Clinton administration’s judicial nomination process, said that Obama has “not established the priority or invested the resources necessary… to focus on… nominations and to keep the nominations pipeline up to the Senate full at all times.”  Furthermore, she lamented that “we have heard nothing from President Obama since his inauguration” about judicial nominations.

Obama is responsible for these judicial vacancies.   That’s the truth no matter how many infographics the White House creates.

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# The Republican Lawyer Blog said on Wednesday, September 07, 2011 8:00 AM

The RNLA blog has a weekly "Obomination" feature covering the ways President Obama has defied

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