RSS Feed MenuI was surprised by a recent piece in the Los Angeles Times claiming that one in eight seats on the federal judicial bench were still empty, with both parties blaming the other for the vacancies. Coincidentally, I was appearing in a Sacramento federal court house when it was sent to me. The judge there noted his was the busiest jurisdiction in the nation.
Certainly, on district courts there should be no judicial log jam. There are 59 caucusing Democratic senators. The Republican Senators from Maine and assorted others are not known for being obstructionist; surely Harry Reid could get one vote? It is incredible at this high tide for the left that they are not stocking the judiciary at every level with “living constitutionalists” as fast as quorums can be called. Patrick Leahy is a committed partisan and fully capable of running a tight judicial ship. Something is wrong here.
From the article and observations of the Obama administration, I see four main problems. First, President Obama as the article notes, got two Supreme Court justices in his first year and a half. That taxes the judiciary committee. His two nominees each garnered more opposition than any Democratic president since Johnson. So part of the problem is that stocking the Supreme Court meant slowing down on the courts below. Which, were I president would consider a good problem to have.
The next two problems are related. Administration related delay: they are slow to pick judges and then they let the ABA vet them. Democratic presidents like the ABA imprimatur but it does not gain them much. The Democrats in the Senate are likely to vote for the nominee anyway and Republicans have come to distrust the ABA as another once-respected institution transformed into just another liberal pleading outfit. It might help Republican nominees but will do nothing for Democrats. There is no reason Obama, a Harvard trained, University of Chicago law professor, should not have people lined up and ready for appointments.
The final problem is that Barack Obama and his people seem not to recognize problem lawyers when they see them. Goodwin Liu, whom Obama nominated for a spot on the Ninth Circuit Court of Appeals, spent his time attacking good Republican nominees with the usual calumny. He cannot expect an easy pass now. You will note that Justice Kagan, whatever I thought of her nomination, could not be nicer to the conservatives she actually came into contact with. Professor Liu should have taken a memo.
As the ruling attempting to eliminate natural marriage in California demonstrated last month, federal judges are the great engine of the left in our day. The incredibly large majorities created by Obama Hope and the circumstances of 2008 seem set to vanish like a mist in 2010. Kagan and Sotomayor will not vanish; nor would any of the lifetime appointments that sit vacant while Obama and the Democrats dither in their supreme moment. If I were a lefty I would be livid. But I’m not. I congratulate the administration on its deliberate and thoughtful approach to judicial vacancies.
maggieo // Sep 3, 2010 at 1:24 pm
I’m guessing no one commented because this doesn’t make intelligent sense. The ABA is a liberal bastion? Really? And its review of judges is the cause of delay (a process that supports more conservative R nominees than liberal D ones) and not the systematic filibuster of nominees who go on to near unanimous approval? Really? Huh.
CO Independent // Sep 3, 2010 at 4:07 pm
Meh. This is just payback for the Democrats. They did the same thing to Bush’s nominees after they took control of the Senate. And I wouldn’t look for any action on these nominations soon since it now appears that Republicans might retake the Senate. Paybacks are hell.
The judicial nomination process has been inherently political since Robert Bork. Democrats have no one but themselves to blame.
Oldskool // Sep 3, 2010 at 5:37 pm
“surely Harry Reid could get one vote?”
One of those votes coming from the party who did a one-eighty on the commission to tackle the deficit? Not in the alternate universe we live in today, sorry.
Rabiner // Sep 3, 2010 at 5:54 pm
John,
“The next two problems are related. Administration related delay: they are slow to pick judges and then they let the ABA vet them. Democratic presidents like the ABA imprimatur but it does not gain them much. The Democrats in the Senate are likely to vote for the nominee anyway and Republicans have come to distrust the ABA as another once-respected institution transformed into just another liberal pleading outfit. It might help Republican nominees but will do nothing for Democrats. There is no reason Obama, a Harvard trained, University of Chicago law professor, should not have people lined up and ready for appointments.”
It isn’t that Republicans just mistrust the ABA, they mistrust any institution that they can paint as ‘elitist’. Republican’s attacks on every institution is why every institution is ‘once-respected’.
“As the ruling attempting to eliminate natural marriage in California demonstrated last month, federal judges are the great engine of the left in our day.”
Just as the Supreme Court in Citizens United are the great engine of the right in our day? And no one is eliminating ‘natural’ marriage but rather expanding the institution to apply to all citizens equally.
heap // Sep 5, 2010 at 5:44 pm
you have to love how easily a judge nominated to the bench by reagan/bush-1 becomes an engine of the left.
just a suggestion, but analysis is typically more than red meat swung around for the ideologically aligned. somehow, you managed to discuss the court vacancies w/out mentioning ’senatorial hold’ or ‘filibuster’ even once.
be honest, even you know this isn’t analysis – it’s a concern troll.
Xunzi Washington // Sep 6, 2010 at 1:11 pm
“It isn’t that Republicans just mistrust the ABA, they mistrust any institution that they can paint as ‘elitist’. Republican’s attacks on every institution is why every institution is ‘once-respected’.”
You have to shake your head at some point and ask “in what way is undermining institutions — or hell, even hierarchical relations or epistemically privileged points of view — a conservative goal?”
RalfW // Sep 14, 2010 at 11:52 pm
This is just payback for the Democrats. They did the same thing to Bush’s nominees after they took control of the Senate.
No, really, they didn’t. The scale of obstruction in this Presidency is entirely unprecedented. You can have your own analysis, but not your own facts.