With Obama Proceeding Reasonably To Fill Federal Judgeships, the Bottleneck Is the Senate

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By CARL TOBIAS
Friday, October 30, 2009

A growing drumbeat of commentary has recently criticized President Barack Obama for not acting quickly enough to fill the 96 present vacancies on the federal appellate and district courts. However, as I shall explain, closer evaluation of the record compiled by President Obama shows that these criticisms are actually unwarranted, and that responsibility should more properly be assigned elsewhere. In particular, blame should now be placed at the Senate's door.

Obama's Approach: Generally a Wise and Good One

Many observers have voiced numerous criticisms of Obama Administration judicial selection. Some have suggested that the President should nominate candidates more swiftly and in greater numbers. Others have criticized the nominees' age (saying they are too old), experience (saying there are too many judges among them), and ideological perspectives (saying they are too liberal or, in some instances, too conservative). A few observers have also compared the number of nominees (23) whom Obama has submitted with the number (95) whom President George W. Bush had submitted at the identical juncture of his administration.

Yet careful analysis of Obama's record shows that these criticisms lack merit. Before Obama won the election, he had already started planning for appointments. And when he was elected, Obama quickly installed as White House Counsel Gregory Craig, a respected attorney with much pertinent expertise, who immediately enlisted several talented lawyers to identify judicial designees. The administration also capitalized on Vice President Joseph Biden's four decades of Senate Judiciary Committee experience in the nomination process. Accordingly, the selection group anticipated and carefully addressed contingencies that might arise when choosing judges. For example, it compiled "short lists" of excellent candidates for possible Supreme Court vacancies, should one arise...

The Real Problem Here Lies More with the GOP Senate Minority Than the President

The Democratic panel majority, thus, has expedited review, but the Republican minority has delayed processing. For instance, it routinely delays committee votes for a week with no or minimal explanation.

http://writ.news.findlaw.com/commentary/20091030_tobias.html