President Barack Obama, on the verge of winning confirmation of his second U.S. Supreme Court appointment in two years, is having limited success shaping the lower federal courts that handle thousands more cases.
Obama got off to a slow start picking judges for the federal trial and appeals courts, and Republican delaying tactics have stalled some confirmations. Filling judicial vacancies will get tougher after November with the likelihood that Democrats’ 59-41 control of the Senate will be eroded.
The president’s allies question his choice of nominees and complain that he has been too cautious in confronting Republican opposition.
“A lot of groups are still waiting for this president to nominate someone who will really reshape the bench,” said Barbara Arnwine, executive director of the Lawyers’ Committee on Civil Rights in Washington. The group supports expanding legal protection for blacks and other minorities.
The 13 appeals courts throughout the U.S. are particularly influential. They have the final say in thousands of cases, while the Supreme Court decides about 80 cases a year. Appellate courts ruled on or dismissed 59,600 cases in the year ending March 31, 2009, according to the Administrative Office of the U.S. Courts in Washington.
Obama has submitted to the Senate 63 trial court nominations and 22 for the appeals courts. At the same point in his first term, George W. Bush had nominated 83 trial judges and 32 for the appeals courts, according to Russell Wheeler, a scholar at the Brookings Institution in Washington.
The Senate has confirmed nine Obama appellate nominees, three fewer than for Bush at a comparable point for the former Republican president. The Senate has confirmed 27 of Obama’s nominees to be trial judges compared with 51 for Bush.
Many of Obama’s choices have generated little controversy. Wheeler suggested that Obama hasn’t taken full advantage of the Democrats’ lopsided control of the Senate to push his nominees.
“Obama obviously has a lot on his plate. But then what president doesn’t?” said Wheeler. “Bush had 9/11 to worry about.”
Obama last week urged the Senate to move more quickly to confirm his nominees. “If we want to deliver justice in our courts, then we need judges on our benches,” he said.
High Court Appointments
The lower court nominations have been overshadowed by Obama’s Supreme Court appointments. Justice Sonia Sotomayor was confirmed by the Senate last year and U.S. Solicitor General Elena Kagan is on track to win confirmation this week, meaning three women would serve on the high court for the first time in history.
In the last half-century, only Presidents Bill Clinton and Richard Nixon filled two Supreme Court vacancies in their first two years in office.
When Bush was president, Democrats blocked 10 appellate nominations they said were too conservative, sparking a confrontation that threatened to shut down Senate work before a compromise was reached to seat three appointees in 2005.
There have been few publicized battles since Obama took office. David Hamilton, Obama’s first appellate nominee, was stalled by Republicans over his views on abortion and other issues before he won confirmation in November, 59-39.
Liu in Limbo
Obama’s most controversial choice, Professor Goodwin Liu of the University of California at Berkeley, has been in limbo since he won approval in the Senate Judiciary Committee on a party-line 12-7 vote in May. Liu, who opposed Bush’s high court nominations of Chief Justice John Roberts and Justice Samuel Alito, is co-author of a book that says judges should interpret some portions of the Constitution using modern-day views.
Twenty other nominees, including 12 cleared unanimously by the Judiciary Committee, await further Senate action. Delays sometimes are followed by undisputed confirmations. Appeals court nominee Sharon Coleman was confirmed 86-0 by the Senate on July 12, three months after the Judiciary Committee approved her.
Each senator has the power to block a nominee by putting a hold on the appointment without giving a reason, a tactic that has stalled some of Obama’s choices.
Senator Jeff Sessions of Alabama, the ranking Republican on the judiciary panel, said Republicans aren’t entirely to blame for delays. He said appointees are “moving along” without the clashes that scuttled some of Bush’s nominees.
Obama’s appeals court nominees who were named before February waited an average of 208 days to be confirmed, Wheeler said, compared with 180 days for Bush’s choices for a comparable period.
Nan Aron, president of Alliance for Justice, an association of environmental, consumer, civil and women’s rights, and other groups, said Obama generally has picked “easily confirmable” nominees, similar to Clinton.
“For the most part, he’s been fairly cautious,” agreed Curt Levey, executive director of the Committee for Justice in Washington, which advocates “constitutionalism.” “He’s picked people who have mostly been judges, which makes them easier to confirm, and people who don’t scream ideology.”
Obama has made the bench more diverse, said Sheldon Goldman, a political science professor at the University of Massachusetts in Amherst.
About half of Obama’s lower-court nominees are women, compared with 22 percent under Bush and 29 percent under Clinton, according to the Alliance for Justice. The group said 23 percent of his nominees are black and 11 percent are Asian American.