The selection of federal judges is among the most enduring legacies of any president, but there’s no indication that President Obama’s lackluster record on getting his judicial nominations approved on Capitol Hill will improve anytime soon.
Since winning re-election, Mr. Obama has nominated 10 candidates for federal judgeships, a renewed push with the Senate after Election Day that a White House aide described as “intentional.” All the nominees are for low-level positions at U.S. district courts.
But Sen. Chuck Grassley, Iowa Republican and ranking member of the Senate Judiciary Committee, said he won’t move more rapidly on judicial nominees in the lame-duck session of Congress because of “Senate precedent.” Both parties blame the other for that precedent, but there is a tradition of not confirming nominees before newly elected members of Congress are sworn in.
The Senate on Wednesday confirmed the nomination of Michael Shea to a district court vacancy in Connecticut, but a clearly frustrated Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, noted that 17 district and circuit court nominees sent up by Mr. Obama are awaiting Senate action with the 112th Congress poised to adjourn in a matter of days. He said Republicans were misreading the chamber’s practice and history in delaying votes.
“Those across the aisle who contend that judicial-confirmation votes during lame-duck sessions do not take place are wrong,” Mr. Leahy said in a statement after the vote. “It is past time for votes on the four circuit nominees and the other 13 district court nominees still pending on the [Senate calendar]. Let us do our jobs so that all Americans can have access to justice.”
In addition to the vote Wednesday, the Senate this week confirmed Paul W. Grimm for a U.S. district court judgeship in Maryland by a vote of 92-1. Mr. Grassley said this week’s votes constituted only the fourth time in more than 70 years that the Senate had confirmed a federal judge in a lame-duck session in a presidential-election year.
“For those who say we are treating this president differently, I would say we have treated him far better than most presidents,” he said, adding that the Senate confirmed only three judges nominated by President Bush in the lame-duck session after his re-election in 2004.
The list of pending nominations reflects a logjam in the Senate that Mr. Obama’s liberal supporters say he has not risked any political capital to break. Other than the president’s two Supreme Court nominations, Sonia Sotomayor in 2009 and Elena Kagan in 2010, Mr. Obama has not used his bully pulpit to lobby the Senate to get his judges approved, liberal critics contend.
“They’ve come under fire from their allies on the left about not making judges enough of a priority, so I think that [the new set of nominations] was a response to it,” said Curt Levey, president of the Washington-based conservative Committee for Justice. “They were nominated in order to make a statement, and the statement is to the Democratic base. But his legacy is not going to be made on lower-court appointments.”
As of Dec. 1, there were 83 judicial vacancies for federal district court and circuit court seats, compared with 55 open seats when Mr. Obama took office four years ago. The Democrat-led Senate has confirmed 160 of the president’s judicial nominees, compared with 205 for Mr. Bush at the same point in his presidency and 200 for President Clinton.
Democrats blame Republican obstructionism, including the use of anonymous “holds” that senators can place on nominees or objections from the home-state senator where a candidate has been nominated. But Mr. Grassley and other Republicans say Mr. Obama has lagged in his pace of nominating judges, too. By the end of their first terms, Mr. Clinton had nominated 247 judicial candidates and Mr. Bush had nominated 231, while Mr. Obama has selected 215 for the federal bench.
The White House aide, who spoke on the condition of anonymity, said 20 of the president’s judicial nominees have been waiting for a floor vote for an average of 147 days.
“If those nominees were confirmed, there would only be 46 district court vacancies,” the aide said. “Every single one of these nominees has Republican support.”
He added that of these 20 pending nominees, 13 would fill judicial “emergencies.”
Of the 83 empty judicial seats, 33 are considered “emergencies,” meaning generally that the number of cases on the circuit court level has reached 700 per judicial panel or 600 cases per judge at the district court level.
“Reid really deserves as much criticism from the left as Obama does, because it’s got to be a priority of the president and a priority of the majority leader to set aside time for those votes,” he said. “That wasn’t the case in the past year. Republicans really don’t have a lot to gain by just endlessly delaying people who are going to be confirmed anyway.”
Before the vote on Judge Grimm, Mr. Grassley noted that the Senate this year had confirmed 31 district judges and five circuit judges — more confirmations than in the final years of Mr. Bush’s two terms.
“Republicans have been more than fair to this president and his judicial nominees,” the Iowa Republican said. “Yet despite that record, and despite the fact that we are about to confirm yet another district court nominee, all we hear from the other side are complaints. I must say, it makes it quite difficult to work cooperatively [when] — no matter what you do — all you hear are complaints.”