Commentary: Solving the federal judicial selection problem

Special to McClatchy NewspapersDecember 31, 2009 

Writers have steadily criticized President Barack Obama's lower court nomination process for two months.

These reports are strikingly similar. They express chagrin that the White House has nominated too slowly, draw facile comparisons with how many nominees President George W. Bush had submitted by this juncture, quote a source who laments Obama's lost opportunity to pack the courts with the kind of judges whom the source favors or simply claim that this has occurred without attribution and conclude by criticizing Obama.

Based on the spate of recent, analogous stories, authors must believe that these accounts make good copy. One problem attends this reporting: It lacks substantiation. Evaluation of the record shows that the ideas reported are unsupported.

Before Obama captured the presidency, he started planning for selection. Obama immediately named as White House Counsel Gregory Craig, a respected lawyer with much pertinent expertise, who swiftly enlisted several talented attorneys to designate prospects. The administration relied on Vice President Joe Biden's 40-year Judiciary Committee experience. The selection group foresaw and felicitously treated difficulties that could materialize when selecting judges. For instance, it assembled "short lists" of superb candidates for potential Supreme Court openings.

Obama has stressed bipartisanship, especially by seeking the guidance of Democratic and GOP committee members and upper echelon party officials from the jurisdictions where vacancies occur, prior to actual nominations. Thus far, Obama has submitted 31 highly competent nominees, who are diverse vis-à-vis ethnicity, gender, ideology, age and experience. They are adequate numerically and qualitatively to facilitate smooth Senate processing.

Frequently before, and always after, nominations, the White House and Senate have worked together. In fostering appointments, Obama cooperated with Senators Patrick Leahy (D-Vt.), the committee chair, who arranges hearings and votes; Harry Reid (D-Nev.), the Majority Leader, who schedules floor action; and their GOP counterparts, Senators Jeff Sessions (Ala.) and Mitch McConnell (Ky.). The panel swiftly reviewed nominees with thorough questionnaires and hearings and prompt votes.

The Democratic majority, thus, has expedited analysis, but the Republican minority has not always cooperated.

For instance, the GOP regularly holds over votes for a week absent explanation. This occurred with three California District Court nominees whom the committee unanimously approved the next week. Sessions also held over Virginia Supreme Court Justice Barbara Keenan, although he had lauded her qualifications at an earlier hearing and the Fourth Circuit urgently requires additional judges because the court has four of 15 judgeships open. The panel has approved 22 nominees.

The actual bottleneck has been the Senate floor. A mere 12 of those 22 nominees have received floor debate and confirmation; 10 are pending without GOP consent to evaluate them. Senator Reid has worked with Senator McConnell and other Republicans but has realized limited success.

For example, McConnell opposed Senate debate on any nominee until it confirmed Supreme Court Justice Sonia Sotomayor, which meant the first lower court prospect was only approved in September. McConnell has also not fully cooperated in entering temporal agreements on nominees. Senator Leahy complained that Democrats have wasted "weeks seeking time agreements" to consider nominees who received unanimous confirmation. Illustrative is Judge Jacqueline Nguyen, who waited almost six weeks before the Senate approved her 97-0.

Republicans have concomitantly requested much time for debates but then used little of it.

A trenchant example is District Judge Roberto Lange for whom Republicans sought two hours, yet consumed five minutes, after which the Senate confirmed Lange 100-0. The unanimous consent procedure means one senator can delay the whole body, while anonymous holds have prevented individual nominees' scrutiny. GOP use of holds for qualified, noncontroversial nominees is rare, if not unprecedented.

The Democrats have once invoked cloture to force votes, but this procedure inflames Republicans and causes additional delay. Leahy recently asserted that the Senate may approve fewer lower court nominees "in this first year of the Obama administration [than] were confirmed in the first years of the last four presidencies."

That Obama has nominated 33, only 12 of whom the chamber has approved, are not criticisms of the White House or the Senate majority. Justice David Souter's May resignation made filling his seat imperative, and that process required three months during which minimal lower court selection occurred.

The administration has also confronted the "start-up" expenses of implementing a new government. The Senate has not confirmed several Assistant Attorneys General and a majority of the 93 U.S. Attorneys. Moreover, there have been compelling needs to treat many intractable difficulties, such as the recession, Guantanamo, and the Iraq and Afghanistan conflicts, which earlier presidents bequeathed.

Recent criticisms of President Obama's judicial nomination practices lack merit. The Judiciary panel majority expedited processing, but the minority's routine dependence on holds has contributed to delay. The real obstacle has been the almost total dearth of floor action. Republicans must quit stalling floor consideration. If the GOP persists, Democrats should invoke cloture and similar measures that will foster prompt confirmations.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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