While President Obama is working hard to solidify his legacy on issues like the environment, labor and education, he’s also making a more subdued effort to surpass President George W. Bush’s score when it comes to judicial appointments.
If he wins confirmation of just 11 more candidates to the federal judiciary, he will tie the 324 that President George W. Bush secured over his two terms. And despite Sen. Harry Reid’s deployment of the so-called “nuclear option” while majority leader, he seems likely to break Bush’s mark with help from a Republican-controlled Senate.
“President Obama has done pretty well” on winning confirmation of his judicial picks, said Thomas Fitton, president of the conservative watchdog organization Judicial Watch. “I think it’s fair to say that Republicans have bent over backwards … to allow many bad and dubious nominees through.”
Liberal organizations are advocating for movement on judicial nominations now that Congress is back in session, but Obama himself isn’t talking about the issue. For example, the Center for American Progress, a liberal think tank led by a former top Obama administration official, posted a graphic last week depicting how many judges were confirmed in the last two years of a president’s term when the opposite party controlled the Senate.
George W. Bush is on top with 122, and Obama is at the bottom with six.
Obama is far behind by that measure, but the fact that he’s only 11 away from matching Bush overall might explain the administration’s measured approach.
Instead of complaining about his nominees being stalled in committee or pending on the purgatorial Senate executive calendar, Obama continues to send up new names at the less controversial District Court level. On Sept. 8, Obama officially nominated three more people to District Court seats from Hawaii to Rhode Island. The same day, the Senate confirmed his sixth judge of the year, Roseann Ketchmark.
The White House does complain about the pace when prodded.
“At the same point in 2007, the Democratic-controlled Senate had confirmed 28 of President Bush’s judicial nominees,” White House spokesman Eric Schultz said when asked to comment about the status of Obama’s judicial nominees. “There are eight noncontroversial judicial nominees for lifetime appointments pending on the Senate floor, six of whom were nominated last year.”
“There also are seven judicial nominees to non-lifetime positions awaiting a floor vote, two of whom were first nominated in 2013,” Schultz added. “We urge the Senate to promptly consider and confirm all of these nominees without further delay.”
But so far this year, Obama is mostly letting his Senate surrogates chide their Republican colleagues for allegedly slow-walking judicial appointments.
“Senate Republicans campaigned last year on the promise that they would govern responsibly if they won the majority,” Vermont’s Patrick Leahy, the Judiciary Committee’s top Democrat, said on the Senate floor Sept. 8. “Unfortunately, rather than solving problems, the current Republican leadership has instead prioritized divisive issues that play only to their political base.”
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, isn’t moved. Grassley noted that Reid changed Senate rules last year in a way that allowed judges to win confirmation with just a simple majority, instead of the normal 60 votes, and that the Senate confirmed 11 nominees under that process right before the 113th Congress adjourned last year.
“Had we not confirmed those 11 judicial nominees during the lame duck last year, we’d be roughly at the same pace we were for judicial confirmations this year compared to 2007,” Grassley told Sen. Chuck Schumer when the New York Democrat complained about the status of nominees just before Congress recessed for its annual August break.
“So put that in your pipe and smoke it,” Grassley told Schumer.
Senate Majority Leader Mitch McConnell, R-Ky., has so far not fully retaliated for Reid’s brushing aside the 60-vote threshold on presidential appointments. But he has said that he is only willing to advance District Court nominees who enjoy the support of their home-state GOP senators.
Eight appointees are already on the Senate calendar and could come to the floor for confirmation votes any day; seven are nominees to the district bench and one aspires to be seated on a Circuit Court. Twenty-three District Court nominees are pending before Grassley’s panel, and three of them have received hearings. That means it’s within Obama’s reach to get 11 more confirmed soon, with more than a year left in Obama’s term.
One knowledgeable Democratic judicial expert suggested that the total number Bush won — 324 — and how close Obama already is to matching it explains his near silence on the matter. If Obama just keeps offering up noncontroversial District Court nominees, and their home Republican senators push McConnell to approve them, he can tie Bush with relative ease, the expert said.
That doesn’t sit well with Fitton and other conservative judicial activists.
“If Republicans were truly concerned about” conservative principles, “they wouldn’t be approving District Court nominees,” either, Fitton said, referring to the lack of vetting of District Court nominees in regards to their legal positions on marriage in light of the Supreme Court’s recent landmark decision allowing gay marriage.
This article appears in the Sept. 14 edition of the Washington Examiner magazine.
