Robert Kuttner writes about Obama’s bewildering indifference to judicial appointments:
But the common element was that nobody—not the White House chief of staff, not the Senate leadership, not the president himself–made judicial nominations a priority. So nearly four years into a Democratic presidency, the federal bench is almost as conservative as it was at the start of Obama’s term. This was a train-wreck of the first order, with consequences that will reverberate for decades.
Geoffrey Stone, the former dean of the University of Chicago Law School who invited Obama to teach there and who was a close colleague, says. “Even if the President is content to appoint moderate judges, it remains a mystery why the Administration is so far behind in its nomination of judges. Had Obama lost in 2012, this would have been a disaster in terms of missed opportunities. As we move forward, it is essential that the Administration get its act together. There is no excuse for the persistent failure to fill vacancies.”
The whole article is lengthy, infuriating, and worth reading.
To Obama’s credit, he has put more people of color, and more women, on the bench than any prior administration:
What Obama has done is make the federal judiciary much more diverse. Of the 158 judges who have won confirmation, 44% were women, 19% African Americans, 12% Hispanics and 7% Asian Americans — much higher percentages than his predecessors achieved. The White House sees the new level of female and minority judges as a base from which future presidents will feel compelled to build.
But as good as that is, it doesn’t make up for all the vacancies that Obama has not filled, or for leading Democrats’ roll-over-and-die response to GOP opposition.
Obama re-nominated Liu in January 2011. Republicans continued to obstruct. Advocacy groups asked the White House how they could help, and were told to stay away. Liu essentially had to run his own campaign. After the Senate voted to reject cloture in mid-May, Liu, after 15 months of being in limbo, withdrew on May 25, 2011, citing the need to get on with his life. There was almost a passive-aggressive quality to the White House treatment of Liu, as if to admonish the advocacy groups: see what happens when we nominate a liberal. “They just let him hang there,” said one frustrated activist.
After the Republicans’ destruction of Liu, Obama and his staff grew even more gun-shy about nominating liberals. Other nominees, even those who eventually won confirmation, have complained that the White House left them on their own as the process dragged on in some cases for two years or more.
Fortunately, Obama won re-election and now has a chance to make things right, especially with filibuster reform seemingly on the way. But even if Obama throws off his torpor and works to fulfill vacancies – and it’s by no means certain that he will – he’ll probably fill them with moderates. According to The New Yorker, Obama has also not paid enough attention to the crucial age factor:
Starting with President Reagan, Republicans made a priority of nominating young lawyers to the federal bench, because, with life tenure, they could make significant marks on the law. Obama has paid less attention to this important point. (The last judge confirmed for the Ninth Circuit, in June, was Andrew Hurwitz, of Arizona, who is sixty-four years old.)
Because no Republican President would act like Obama has, and because out-of-touch Democratic Senators like Pat Leahy pride themselves on not obstructing Republican judges, the Republican advantage in judicial appointments will probably continue for a generation or more.
This will not harm Obama, Reid or Leahy, but it will harm liberal laws and lawmaking; it will harm women and children and minorities; it will harm civil rights; it will harm innocent people accused of crimes. This issue, more than any other, makes me wonder what President Hilary Clinton might have done differently.
More reading: How Obama has jeopardized the future of liberalism. That blog post was written before Obama’s re-election. Obama has a second chance; let’s hope he uses it.