Obama, Republicans square off over courts

ALEX BRANDON / Associated Press
ALEX BRANDON / Associated Press
Posted: July 11, 2010

While most of the nation's attention remains fixed on the expected confirmation of Solicitor General Elena Kagan as the fourth woman ever to sit on the U.S. Supreme Court, there is a fierce, largely ignored battle going on between President Obama and Senate Republicans over his goal of sharply altering the composition of the mostly white-male federal judiciary.

So far, nearly half of Obama's 73 appointments to the federal bench have been women, 25 percent have been African American, 11 percent Asian American, and 10 percent Hispanic. About 30 percent of Obama's nominees were white males. By contrast, two-thirds of George W. Bush's nominees were white males.

Obama's rate of appointing women and people of color is higher than those of any of his predecessors during the first year of their terms. But he is not the only one setting records.

According to a report by the Alliance for Justice, a liberal advocacy group: "The Senate confirmed both fewer nominees and a smaller percentage of nominees under President Obama than under any other previous five presidents during their first year in office."

Presidents Jimmy Carter and Ronald Reagan had 91 percent of their nominees confirmed in their first year in office. Since then, however, the figure has sharply declined, with George H.W. Bush getting 65 percent of his early judicial nominees confirmed, followed by Bill Clinton at 57 percent, George W. Bush at 44 percent, and Obama at 36 percent.

Obama and his Republican opposition share at least part of the blame for a large number of judicial vacancies.

For his part, the president, distracted by two wars, an economic crisis, and two Supreme Court appointments, has submitted fewer candidates for federal judgeships than any president at this point since Dwight D. Eisenhower in his first term. There are slots for 858 judges at the district court and appeals court levels. For 103 vacancies, Obama has nominated only 40 candidates.

And when the president has made nominations, Senate Judiciary Committee Chairman Patrick Leahy says, they have been met with what Leahy, a Democrat, calls unprecedented Republican obstruction. So far, a little more than half of Obama's nominees have been confirmed.

Although senators on both sides of the aisle profess to want judges to rule strictly on the merits of each case, studies have shown that judges generally rule along the philosophical lines of the president who appointed them. There have been some notable exceptions, such as retiring Justice John Paul Stevens, who was appointed by Gerald R. Ford.

Unfortunately, the political infighting has caused more sitting judges to assume heavier caseloads, resulting in longer delays for some suspects awaiting criminal trials. There are 40 judicial emergencies, defined as vacancies that have lasted more than 18 months.

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda. And controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.

The Bush administration did that by abandoning the tradition of allowing the American Bar Association to vet judicial nominees. Calling the ABA too liberal, Bush relied on the Federalist Society, a collection of conservative law students, professors, lawyers, and judges, to screen potential candidates.

Bush also ignored the tradition of consulting both of the nominee's home-state senators. If he or she objected to the nomination, either senator could place a hold on it, blocking it from reaching the Senate floor for a vote. Obama has reversed both practices.

There are high stakes involved in the battle over the courts.

At the end of George W. Bush's administration, Republican-appointed judges held majorities in 10 of the 13 circuits, Democrats controlled two circuits, and one was evenly divided. Since Obama has taken office, his appointments have switched two circuits from Republican to Democratic majorities, with a third about to follow suit.

If Obama fills all judicial vacancies, there will be a more balanced split between Democratic and Republican judges on the federal bench. But both sides are jockeying for an advantage. Democrats are eager to push through Obama's court nominees, while Republicans try to stall as many as possible, hoping that the GOP can regain the White House in 2012 and exert even more control over federal courts.

Although he got off to a slow start, by the time George W. Bush left office, the Senate had confirmed 322 of his 333 nominees on whom final action was taken (confirmation, rejection, or withdrawal), a confirmation rate of 97 percent.

Court appointments are considered a president's most enduring legacy. But there is nothing endearing about the alley fight that takes place, regardless of which party is in power.


George Curry is a former Washington correspondent and New York bureau chief for the Chicago Tribune. He can be reached at gcurry@phillynews.com.

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