Stare Indecisis: Obama’s Inaction On Judicial Nominations
Michael Fletcher has an article in Friday’s Washington Post entitled “Obama Criticized as Too Cautious, Slow on Judicial Posts“.
President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they considered a key priority.
During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.
But some Democrats attribute that GOP success partly to the administration’s reluctance to fight, arguing that Obama’s emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.
Well, yeah, that is about right. In fairness, and Fletcher, despite the gist of his title, does point this out in the body of his article, the GOP is acting in bad faith with the obstructionistic filibustering and holds. So, it isn’t all Obama. But there sure is a problem here.
Three out of 23, with a popular President possessing a real electoral mandate and the supposed holy grail of a 60 seat caucus majority in the Senate, is a batting average that screams lame. But the real eye opener painting the full color of the context is that George W. Bush sent 95 nominees to the Senate for confirmation by this point in his first term. Whatever happened to the big push Greg Craig (he of two first names) was spearheading on this? And make no mistake, it is not as if there are not plenty of judicial seats to fill – there are currently at least 90 waiting to be filled – and it is having a deleterious impact on the ability of Federal courts across the country to function.
The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats — about 10 percent of the total — remain vacant in appeals and district courts.
The part of Fletcher’s article that is most distressing, however, is the description of the namby pamby attitude and philosophy Obama has on his judicial nomination policy.
Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.
Obama has said he wants to appoint empathetic judges, but “beyond that, he hasn’t said much. So it is hard to know exactly what he has in mind,” Posner said.
Empathy. Hate to agree with the Republican talking points; but they are right, empathy is a bogus and impertinent concept to frame a Presidential judicial nomination policy around. Posner is absolutely right though, non-controversial empathetic centrists is about the sum total of the game plan for the Obama Administration. And he is not even making headway on that weak agenda.
Obama’s first nominee was David Hamilton, a centrist milquetoast from Indiana. Hamilton has a (despite the nitpicking claims of the GOP) bland and clean record, is Lee Hamilton’s nephew and has the ardent backing of home state GOP Senator Richard Lugar. Yet Hamilton languishes without a vote. Just like the other forgotten nominee from Indiana, Dawn Johnsen. And that is the way it is going to be with the current Republican minority; and it isn’t going to get any better after healthcare has been passed against their will.
Time is wasting, there is no reason not to put up big blocks of nominees. Get on with it, make the Republicans vote in good faith or expose them as unprincipled obstructionists. Fight for your nominees and use the 60 seat majority. You can bet your family farm that is exactly what the Republicans would do; it is what they do when in the Presidency.
“Obama has said he wants to appoint empathetic judges, but “beyond that, he hasn’t said much. So it is hard to know exactly what he has in mind,” Posner said.”
We know what Republicans “have in mind” – Republican judicial nominees have to be members of the Federalist Society and show that they know all the “passwords” and “secret handshakes” before they can be confirmed by a bare majority in the Senate. Bush even gave Charles Pickering a recess appointment to the 5th Circuit in the face of a Democratic filibuster (remember the “nuclear option”? “up or down”?) Caution on the federal bench does not give me great hope for Obama nominees to the Supreme Court – although Justice Sotomayor had a good start to the term if oral questions are any indication (and they aren’t!)
Good morning, bmaz.
Two wee thoughts.
First, Obama has,apparently,reached the summit of his ambitions and now appears to be fortifying his already exceptional talent for ignoring the obvious, which endears him to the American public not only because the public is trying to do the same thing, but also because that is his job, to be above it all, pristine in his untried virtue and confident in the enduring bipartisan pragmatism which he adores. He is simply the figurehead of “change and hope” and (obviously) he wishes to keep things that way, even if the AP accuses him of being “obnoxiously articulate” …
Second, to call out the loyal opposition, as you suggest, would destroy the ultra-successful kabuki which both parties have labored so long and hard to achieve. Besides it wouldn’t be polite and if there is one thing, above all, that the Democrats are especially gifted at, it is being polite in the face of the destruction of the Constitution, the economy, and the well-being of the American people.
Hell, the Democrats won’t even end a crappy, useless, and mindlessly destructive war … Which decision is, pretty much, entirely up to President Barack Obama.
The only court Obama is interested in is the big one, the one at the top, where all the petty annoyances of those who have stood against Bush, and now, Obama, will, each and every one … be made to go away.
Now, before it appears that I am a mean-spirited cynic, might I suggest that cynicism is too grand a playing field for such as myself, and I would humbly suggest that the term, “cynic” be reserved for those who game the system, regardless of the cost to a decent and civil society.
DW
I’m really disgusted over Dawn Johnsen’s nomination. That was the one action that I thought showed some balls and I hoped that maybe this guy meant what he said about accountability.
I now realize that this is a three-card monte administration and if you don’t keep your eyes glued to the cup you ain’t gonna win a damn thing.
The pity is that when, not if, the GOP is back in power in congress the judiciary will be its first order of business.
It is a bit of a shell game without a pea, isn’t it?
bmaz;
You have, most succinctly (and with a decidedly delicious precision), described the essence of the Obama administration.
I hope Obama, somehow, gets to hear of or see your comment.
He might want to change his “game”-plan to craps or musical chairs.
;~DW
Agreed. The judicial nominations are a testing ground to see if Obama has
the innate courage and savvy to win a victory.
To date, it has been too fucking slow… especially with Dawn Johnson.
On the other hand, I feel Sotomayor was handled quickly and flawlessly…
Can’t agree with your disdain for the term “empathy”….. no bogie there,
the term for me is a beauty.
It defines who we are as Dems…. The Repubs are only interested in empathy
when it effects THEM…
Sure, it is a nuanced term….. but it defines a judicial temperment that
I find praise-worthy…
Empathy suggests being swayed by emotion rather than law and facts; it is a legally impertinent consideration. It is an asinine thing to frame judicial nomination policy around.
<>
Only when you define empathy in the “emotional” sense rather than the “thinking” sense…
bmaz:
When you are “good”, you definitely get a great “roll” going.
Again, I hope President Obama might, somehow, stumble over (or across) THIS comment as well.
DW
Obama is as tentative as his inexperience would predict. On issue after issue, he negotiates with himself, loses, caves, gives the Goopers what they want or more, and they still refuse to back him. Either that, or he never wanted what he asked for in the first place.
Before 9/11, George Bush had no idea what to do with government (though Dick Cheney and his handlers had plenty of ideas and put them into action the minute they walked in the door and falsely complained about the W’s missing from their keyboards). Afterward, he imagined he had a mission from God that required him to sacrifice the world to save it. Obama has plenty of ideas, but he’s loathe to put them into action because that contradicts an even more important goal – avoiding overt conflict.
Bush hated to be exposed to the policy-making process; he, or more often, Cheney, dictated and perverted policy-making to hide it and to suppress dissidents. Obama is comfortable with policy-making, though he, too, much prefers pre-agreement, such as by limiting his economic voices to those paid now or later by Goldman Scratch. No, Obama is uncomfortable with implementing policies, so he doesn’t.
Obama’s public claim that partisanship in governing is unnecessary and the greatest thing to be avoided is false. It is as unavoidable able as sex and food. The question is what kind. He has failed to distinguish the goals of a responsible party from an obstructionist one: a party that engages conflict constructively, that vigorously defends its positions and implements policies that respond to or anticipate real world events versus a party that makes Sherman’s March to the Sea, his decimation and subjugation of northern Georgia, look like a picnic, while blaming it on the people sacrificed to their will.
Except when it comes to disciplining his own team for asking for what he promised, Obama figuratively acts like the newest inmate on cell block F. That makes the Republicans feel right at home. They know exactly exactly how to take out their frustrations on and demonstrate their power over newbies.
Obama has been as tentative in appointing new judges as he has been on replacing often seriously or criminally flawed sitting US Attorneys. I think that’s true with all his appointments. I suspect he’s been equally tentative on undoing Bush era rules and regulations that gutted not only those in place when they came in, but which gutted the formal policy-making and informal networks through which government actually does business. As for ferreting out political appointees that burrowed their way into the civil service, and who will sabotage the running of their departments, I don’t think he considers that a problem to be dealt with.
The public doesn’t want Mr. Obama to be as destructively extreme as Mr. Bush. That might be an impossible task. It does want him to recognize the destruction he inherited and the extremity of the problems it has caused, and to respond with an appropriate vigor and speed. Instead, he’s telling the band to play on, never mind the iceberg.
More clarification…
“EMPATHY IS NOT PREJUDICE: it is the ability to imagine the point of view of the other. Without this ability to engage in thoughtful outreach, beyond one’s own personal realm of experience, and empathize with the human situation of the other, no jurist can begin to understand the human meaning of the arguments made in their court, and objectivity remains wholly beyond their reach.” JE Robertson
I would hope all judges are possessed of empathy.
The need of genuine empathy between all human beings becomes greater every moment, indeed the survival of the species may well depend upon it.
But first, I would hope that all judges are concerned with the “facts” of a specific case and are well-grounded in their understanding of the law and how it applies to the case at hand.
Beyond that, hoping that the judge one is dealing with is not some twisted greedy twit like the two judges in Luzerne County, Pa. who had no problem sending young people off for extensive incarceration at a for-profit prison system which saw that the judges were rewarded for their “inputs”, or a “true believer” whose political sentiments are so aggressively destructive as to determine the nature and “quality” of their “decisions”, or that the judge will recuse him or herself in the event of that being proper, is all we are left with.
(And this hopiness doesn’t even begin to address the issues of the “means” by which the judge became a judge. Elected, as a political partisan, or appointed and confirmed for equally political “reasons” or “considerations”…?)
Yet, an empathy “rating” for judges would be a hoot, the “gaming” would be hilarious and there would be lots of bright, shiny things to “ooh” and “ah” about, so there would be more opportunities for folks to work themselves up to a high dudgeon (which is kind of like leaving in a huff, which was a little-known automobile of American manufacture.)
If “empathy” is to be Obama’s “litmus” test of “acceptability” at the federal court level, then the hooting and gaming is going to be truly something to behold. Bring popcorn and ear-plugs.
Empathy is as essential to being a judge as knowing the law, a point made by the actions of those judges who lack it (five on the Roberts court, most Texas judges, Friendly in NY and Silberman in DC).
Perhaps more accurately, it is an ability to empathize with the logical claims of and the need for a fair process for those with less money or less expensive or talented lawyers. It is a frame of mind that does not equate right with might, but one that suspects might because it has the power to overcome right. That’s the kind of mindset that used to be common among journalists, for example, as well as good judges.
If Obama were to say that empathy was his primary criterion in selecting judges, he’d be laughed out of the academy as either hopelessly naive – he’s inexperienced, not naive – or a bad liar.
The Right is smarter about this, too. It picks movement conservatives – Alito, Roberts – but hides their paper trails behind privilege or obscurity, pleasant-seeming personalities, and nonsense answers at hearings. The Dems haven’t figured out what they want in judges or how to get it. If in this, too, Obama imagines he can avoid partisanship or open conflict, he should run for pope instead of president.
The real business, as Obama’s aides know if not Obama, is the Chicago street politicking that goes on between the White House and the Hill about what each pick will do for or harm the interests of each Senator. It’s also about what each Senator can hold a nomination hostage to. The notion that “empathy” is the most important issue in play here is street theater for the groundlings.
Agree, it is a red herring. But that is what is so maddening to me as a lawyer. Legally it is nonsense, rather it is happy political talk; but Eric Posner is correct in that it is the only defining characteristic that Obama has been able to muster. And that is tragically lame; and what drives me nuts.
Let’s see if Obama re-frames the issue when he nominates a replacement for Ginsburg and Stevens…
Agreed. For all his electioneering happy talk, Obama seems to equate having an agenda with having HIV. Like empathy, an agenda is not per se bad. The issue is what do you empathize with – lobbyists and the powerful or the people whose rights and lives they steamroll. The issue is what’s the agenda.
GOP talking points aside, an agenda is simply a list of the things Obama finds important and for which he would fight. Obama acts as if admitting to an agenda or admitting to anything more than the street theater version of it will lead to inexorable conflict and partisanship. What does he think he has now?
If Obama is afraid that admitting to his agenda will lose him votes – because the public won’t like it or support an ego driven not by a need for constructive change but one driven by the need to accept the status quo at all costs – he should be afraid to govern. And he should not be doing it.
Where is Reidless Harry in all this? He’s the master manipulator of the Senate calendar, the head and knucklebuster, the guy with the carrots and sticks whose logic or forefinger are supposed to be hammering the chest of recalcitrant Dems and ‘Pubs alike in order to make the Senate run and get its business done?
Where, oh where is Harry? Is he hiding behind another anonymous hold? Or is he sitting quietly in his office reading and rereading the dismal polls that spell doom for his re-election?
Another aspect of this is its ability to dethrone the “three-dimensional chess” claims about Obama. Team Obama knew from the moment his candidacy was first taken seriously that a top priority would need to be legal staffing – federal judges, US Attorneys, the staff of the DoJ from its clerks to the AG.
How could they not? There was the intense packing of the federal courts with Federalist Society members and movement conservatives, from Roberts and Alito at the Supremes, to Brett Kavanaugh in the DC Cir., to federal judgeships around the country. There was Karl Rove, David Iglesias and the US Attorney scandal. There were US Attorney scandals in Alabama, in Milwaukee and Minneapolis, in Pittsburgh.
At the DoJ, corruption lingered like a Chris Christie cigar’s smoke: the aftermath of von Spakovsky and company in the civil rights division, the aftermath of Yoo and Bybee at OLC, the aftermath of Goodling and Sampson inside the AG’s office, and the aftermath of ‘Fredo and Mukasey themselves.
One issue that should have been planned more carefully than any other – expect health care and the bankster bail-out – was getting the US government’s national legal staffing into a 12-step program. So far, it seems, no one’s even showing up at the meetings.
If you will recall, this is exactly why is so stridently supported appointing Janet Napolitano AG instead of Eric Holder. She is simply light years better at reforming and revamping a big bureaucracy that is out of whack. She is a consummate team maker and manager, and has demonstrated that with the way she dramatically turned around multiple offices, including the AG, USA and state government as Governor in Arizona. These are people management skills that Holder has never shown a propensity for, and they are critical for the job as head of DOJ in the smoldering wreckage of the Bush/Cheney Administration. No, she is not a civil libertarian of the Russ Feingold ilk, but she is a far sight better than Holder on that too. What we are seeing is exactly what I expected and predicted from a Holder DOJ.
I recall your multiple comments to that effect. Obama chose Holder, I suspect, was because he knew and liked him (the Bush Effect), because he was likely to tend to the legal issues in a more conservative, Obama-like manner than Napolitano, and because he would not revamp the DoJ and its USA’s in the way recovering from Bush would require. That would inevitably lead to greater political conflict, something Obama has gone out of his way – and given up much of his moral and political leadership – to achieve.
and eoh @19 – This is where there is some legitimacy to the arguments that were floated “backwhen” about Obama never really having run anything much. He hasn’t been geared up and seems to have thought that surrounding himself with guys like Summers and Geithner and Holder would help him on the “running things” front. But at some point, you have to BE the CEO, not just know some.
OTOH, via umpteenth dimensional chess, the fewer the judicial appointments, the more “the base” will feel it “needs” to support Democrats so that we can “get judicial appointments” over the mean, monolith of the REpublican party.
I don’t doubt that as a possible strategy on Rahm’s part – he’s Obama’s COO. So far, Obama himself is acting as chairman of the board, which leaves a big hole in the CEO’s slot that Rahm, like Cheney, will be happy to fill.
The problem is how expensive it is to keep delaying dealing with contentious issue after contentious issue. Ninety empty judgeships means thousands of cases – the cares and concerns of real people – are not being handled promptly. It means thousands of support staff are being ill-used because their boss’ chair remains unfilled. Marry that with good staff at US Attorney staffs across the country, demoralized after eight years of Bush politicization, being further demoralized and having their work suffer owing to these delays.
In partisan terms, it means that hundreds of the Democrats’ top lawyers, the candidates for these or upcoming judgeships and the legal teams vetting them, are unsure what party loyalty means as they wait, like Dawn Johnsen, for partisanship magically to disappear and Obama to act.
There’s no magic bullet here. There are no more Al Frankens, no reliably Democratic 61st or 62nd Senators whose presence will transform a partisan business into a cooperative one. Until Obama deals with that, he’s a caretaker. This ship of state needs a commander, not someone endlessly pouring oil on every wave in sight so that he needn’t navigate in heavy seas.
OT, here is an example of Obama’s style. The SEC has formed a new Enforcement Division – one would think that was a primary reason for its existence – and hired its first head, a 29 year-old Goldman Sachs alum, Adam Storch.
Mr. Storch, pictured and bio-ed here, went to SUNY Buffalo and B-school at NYU. He has five years work experience, all at Goldman.
Mr. Storch’s background is exactly what one would pick if one didn’t want the SEC’s Enforcement Division to succeed. Its head has no legal training and no audit, litigation or prosecutorial experience. He has no government experience. He has little, if any, management experience. He is a Goldman “vice president”, but banks hand out titles like credit card companies mail out “pre-approved” credit cards, so that doesn’t tell us much.
George Bush relentless hired neophytes to do adult jobs, Mr. Storch is an example of Obama doing likewise. He is likely to do what he’s told and to be grateful to those who’ve put him on a path to be Treasury Secretary some day. Unless he comes from money, his resume suggests not, he won’t have the independence, much less the experience or judgment, to tackle one of the most contentious jobs in government.
Mr. Storch is undoubtedly talented and highly ambitious, Goldman doesn’t hire anything else, but he’s the wrong tool for the wrong job. Shame on the SEC, shame on Tim Geithner and his peer at the SEC, and shame on Barack Obama.
Actually, Storch comes from a famous family of enforcers.
Shouldn’t there be an arrow stuck sideways through his hat? I was trying to say that Mr. Storch may be talented, but that his talents will be misused – assuming that Obama’s SEC is any more interested in enforcement than Mr. Bush’s.
As for why Mr. Storch would leave the top rung of the NY investment banking world, or why Goldman would let him go, there are many possibilities. One is that he wasn’t on track to make partner (or whatever it’s called now that Goldman is a corporation). Another is that not having made partner, he hadn’t yet tasted those mega-bonuses and might very much like some day to return some to Goldman’s good graces and receive them. Such motivations do not an effective enforcer make.
I may have misunderstood how long the SEC has had an enforcement division, I hope so, but Mr. Storch is its new COO.
is it not obvious by now,
obama plays to the senate and the house.
that is his constituency,
that constituency shapes obama’s domestic
and
his foreign policy.
So far, Obama himself is acting as chairman of the board, which leaves a big hole in the CEO’s slot that Rahm, like Cheney, will be happy to fill.
At one time I thought Biden, with years of Judiciary Committee experience, national and inside-the-machine contacts, and a grasp of bureaucratic infighting would be put to work on the Justice/judicial repair job. But he seems to be tied up trying to get Obama out of the political jam created by the Afghan quagmire (itself a product of bipartisan cowardice).