Is the GOP or Obama to Blame for Slow Pace of Judicial Nominations? - CourtSide
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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.

The 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 contemplated.

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.

As 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 federal judiciary.

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.

Some political 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.

With 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.

All 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 altogether?

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 (NYTimes)