Is the GOP or Obama to Blame for Slow Pace of Judicial Nominations?
The US Senate is scheduled to vote on cloture today for the nomination of U.S. District Judge David F. Hamilton to a seat on the Seventh Circuit. Leading Republicans have so far filibustered the nomination in response to what they see as Hamilton's liberal social agenda, and have vowed to keep the filibuster going as long as possible.
Never mind the fact that Hamilton has been lauded as a moderate by both Indiana Sen. Richard Lugar - a Republican from Hamilton's home state - and the president of Indiana's chapter of the conservative Federalist Society. Lugar plans to cross party lines and vote for a motion that will allow a final vote on Hamilton's nomination.
Also disregard the fact that the GOP condemned the Democrats' use of the filibuster to block several of George Bush's judicial nominees, even going so far as to call it unconstitutional and threatening to remove the use of filibusters from the judicial confirmation process altogether.
Hypocritical? Nah, that's just politics. Ok, so it is hypocritical,
that's true, but hypocrisy comes with the territory in DC. Republicans
are still bitter about the Democratic filibusters, so now it's payback
time, even though the parties had previously reached an agreement to
refrain from filibusters except in extreme circumstances.
ranking member of the Senate Judiciary Committee, Sen. Jeff Sessions (R
- AL), has tried to address these concerns over his party's hypocrisy
by explaining that Senate Republicans aren't bound by the earlier
agreement and, even if they were, Hamilton's nomination constitutes
exactly the kind of extreme circumstance that the agreement
Sessions points to Hamilton's decision that the
Indiana legislature's opening prayer was unconstitutional as evidence
of Hamilton's "social or political agenda," and disregards the praise
for the judge as a fair jurist.
And it's not just Hamilton, either: the GOP has slowed the nomination process for most of Obama's nominees.
I mentioned before, though, the Democrats did exactly the same thing
for Bush's nominees, so really this is just a tit-for-tat situation.
Except that the Democrats tended to block the nominees with the most
extreme positions, while the GOP has dragged its feet on even moderate
nominees like Hamilton.
This brings up an interesting aspect
of Obama's nomination strategy. Rather than nominating a large number
of partisan, ideological jurists to the federal bench, as Bush quite
openly did, Obama has only selected a handful of nominees, and has
quietly vetted the candidates among their Republican representatives in
the Senate to feel out the chances for confirmation before putting
their names forward.
This has resulted in a very small number of
nominees in Obama's first year relative to past presidents. In Bush's
first year, for example, he nominated 64 people; thus far, Obama has
tapped only 26. This slow-trickle nomination strategy has upset many
of Obama's supporters, who want the president to open the floodgates
and quickly right the imbalance of what they see as a right-leaning
The outcry from the left has become even
louder after the GOP began its strategy of blocking even the consensus
candidates, giving Obama a grand total of only six confirmed judges so
far in his presidency. White House officials counter the grumbling of
their supporters by pointing out that the president did have a
successful Supreme Court nomination during his first year, and they
expect that Obama's first-year confirmation total will begin to
approach Bush's towards the end of the year.
observers have argued, however, that it's time for Obama to change
strategies. Since the GOP is blocking even the uncontroversial
candidates, they argue, Obama should just nominate whoever he pleases
and force the Republicans to pick their battles more carefully.
several high-profile legislative battles in the works, however, Obama
might choose to pick his own battles and keep some of his rapidly
waning politically capital for the legislative bloodbath sure to ensue
over health care and financial regulation, to name just two.
this begs the question, then: who's really responsible for the lack of
movement on judicial nominations? The GOP, who are hypocritically
filibustering qualified centrist candidates, or Obama, whose strategy
is already reducing the number of nominations and possibly presenting
the GOP with a golden opportunity to stall his plans for the judiciary
Really, as with most things in Washington, both
sides are at fault. The problem here is that it's the administration
of justice that's suffering for it. Long, uncertain nominations keep
judges off the bench and result in further delays and backups for the
sitting judges. Moreover, promising legal talents might choose not to
pursue a career on the bench as the confirmation process grows ever
more bitter and divisive.
Regardless of politics, this can only hurt the judiciary in the long run.See Also:GOP Opposition Slows Obama's Judicial Nominees
(NPR)Obama's Judicial Nominations
(NYTimes)What's to Become of Hamilton? Senate Could Decide Tuesday
(WSJ Law Blog)Giving hypocrisy a bad name
(Washington Post)Time for a ruling on judge
(LATimes)G.O.P. Senator Supports a Filibuster for Judicial Nominee