Executive Nominations, Judicial Emergencies and Change in WH Counsel’s Office

Abby Philip and Josh Gerstein at Politico have an excellent piece up on the state of Executive Branch nominations in the Obama Administration.

It’s crunch time for the White House to get key executive branch jobs filled before the end of President Barack Obama’s first term.

Dozens of top posts in both the executive branch and the judiciary remain vacant, while some of those who started near the beginning of the administration are bailing out.

Nominees who aren’t confirmed by the Senate by the end of this year likely will become tangled in election-year politics, given Republican hopes of taking the White House, the Senate or both. If Obama wants a good shot at getting his nominees through this year, Hill veterans say, names need to reach the Senate by the summer recess.

Adding to the heightened urgency for action: Many of the unfilled posts deal with Obama’s major policy priorities, including financial regulatory reform, immigration and health care. Not coincidentally, those positions also are some of the most likely to become ensnared in partisan disputes.

Go read their full article, it is a good across the board discussion on nominees and where we stand in various areas of interest.

There are two areas of the Politico piece I want to draw attention to. The first is the critical importance of work and support by the White House for their nominees and the nomination process.

But one former official said much of the blame for the slow pace lies with the White House.

“A lot of fingers have been pointed at the Senate,” said Chase Untermeyer, who served as director of presidential personnel for President George H.W. Bush. “I always say that two-thirds of the job is on the executive side.”

Exactly. For one thing, it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll in the hallways and dockets of justice. Gerstein and Phillip pointed to the appalling state of play in Arizona to illustrate the issue. I owe them a debt of gratitude for pointing the Arizona situation out, because I have long been screaming about the empty seats and docket problems both here in Arizona and in the 9th Circuit.

For most of the last half of 2010, Chief Judge John Roll was in the process of certifying the District of Arizona as a formal “judicial emergency” zone from docket overcrowding, a situation that exacerbates relentlessly in most all case types, but especially from immigration and immigration related types of cases. We needed more judges allotted to start with, but have simply been killed from having long had two empty District judicial seats that were not only empty, but for which Obama could apparently not even be bothered to name nominees for.

Then John Roll was killed in the Giffords shooting, leaving three empty seats in a District that would need another two seats to have some normalcy even if all three of those traditional seats were indeed filled. In the intervening six months since Judge Roll’s death, Obama has not designated one solitary nominee for the previous two openings, nor John’s now empty large chair. It is simply unacceptable and a dereliction of duty.

It is not just judges either, Obama was extremely slow to move out Bush/Cheney US Attorneys (and only recently did so with the extremely troubling Leura Canary), has left a dearth of economic positions unfilled including the absolutely critical position of Director of the Consumer Finance Protection Board (which cannot even become fully operational without a Director) and, of course, has struggled to fill key Justice Department positions, including at OLC.

But, as Chase Untermeyer pointed out, there also is the issue of support for the nominees by the White House. For all the bad mouthing of Greg Craig, Bob Bauer has not been able to get that much more accomplished on the nomination priorities, and the word is that he honestly tried. You have to wonder what type of high wall and tin ear the Obama inner circle has up to ignore the critical need to fill vacant positions causing literal emergencies in the field.

The other point that leaps out from the Politico piece is who the Obama brain trust put in the lead for Presidential Personnel, a position critical to making and shepherding executive nominees:

Less than five months into his administration, Obama nominated Presidential Personnel Director Don Gips — a former high-tech executive — as ambassador to South Africa. Months later, White House Counsel Greg Craig quit.

“They did some things that hurt them: changing leadership of the president’s office of personnel, which pushed them back,” said Clay Johnson, who was former President George W. Bush’s personnel director and co-chairs the Aspen Institute’s committee on presidential appointments.

Gips was replaced in 2009 by his 30-year-old chief of staff, Nancy Hogan, a little-known former aide to Daschle.

Quite frankly, Phillip and Gerstein understate how shocking this fact is. This is a position that is exceedingly important to all nominations in general, although WH Counsel’s Office generally leads on justice related nominations. Putting a 30 year old in charge of this job, no matter how talented they are, is simply amazing. It is a process and job that calls for material gravitas and experience working the process on the Hill; it defies credulity that was the path of the Obama Administration.

At any rate, the Politico article is an excellent barometer and report of where we are and why on the nomination gap in the Obama Administration, and it is a troubling picture in many regards. Obama is certainly due credit for getting two Supreme Court justices confirmed in a forthright manner, but the record apart from that is pretty damning.

The other news of note today fits right in with the discussion nicely. Bob Bauer is leaving his position as White House Counsel. From the official White House announcement:

Today, June 2nd , the White House announced that White House Counsel Bob Bauer will return to private practice and that current Principal Deputy Counsel to the President Kathryn Ruemmler will serve as White House Counsel.

“Bob is a good friend and has served as a trusted advisor for many years,” said President Obama. “Bob was a critical member of the White House team. He has exceptional judgment, wisdom, and intellect, and he will continue to be one of my close advisors.”

At the end of June, Bauer will return to Perkins Coie where he will resume his practice focused on serving as general counsel to the President’s reelection campaign, general counsel to the Democratic National Committee, and personal lawyer to President Obama.

I do not know much about Ruemmler, but she does have a solid background it appears. The decision by Bauer to leave may raise a few eyebrows, but it actually makes a lot of sense. Bauer is an extremely accomplished Democratic campaign attorney, and the party is starting to gear up in full for the 2012 election. Bauer can really make a valuable impact in that capacity, and after banging his head against the nomination wall in the White House, the return to his standard haunts is probably a welcome thing.

  1. Mary says:

    Good piece. I’m torn between thinking this is Obama being inept or too unable to even come up with names if he thinks the Republicans will say mean things (instead of hammering them with names to keep them scrambling on their oppo research and looking like rank obstructionists) or whether (and yes, this is how cynical I’ve become) it’s part of his campaign strategy for 2012 for the disenchanted “media-designated left” to keep them convinced that however bad they think he is, they need to support him anyway because of all the appointments that will be made and seats filled (because Dems like DiFi will always vote for Haydens and Southwicks) by a Republican.

    I’m beyond caring, but I see it as a still looming concern for many of my “media-designated liberal” friends.

    • BoxTurtle says:

      Perhaps we’ll get lucky. The GOPers are falling on the medicare sword as fast as they can, perhaps after the next election Obama will have to work with the progressive wing of his own party rather than tea party front men.

      Boxturtle (He’d probably still strike a deal with the GOP. Assuming he could get that far)

    • bluedot12 says:

      I don’t believe the man thinks strategically. He has many issues he could be hammering away at including the debt and unemployment. Why does he not ask for more stimulus and say the thugs are ruining us with the blocking of everything. He is going to end up losing by being too cute by half.

  2. BoxTurtle says:

    In his first two years, he could have broken a judicial filibuster. Now I don’t think he could get a judge confirmed without the GOP actually picking the nominees. He could nominate Yoo for a position and the GOP would still vote against it because it came from Obama.

    Also, I’m as concerned about the quality of anyone he might select as I was about anybody Shrub would select. In Bush’s case, I felt it was better to overwork the judges than permit some of his choices a lifetime appointment.

    I doubt we’ll see any significant positions filled except by recess appointment. IMO, Obama lacks both the leadership and fighting spirit needed to get a nominee through the senate.

    Boxturtle (The jury is still out as to if that’s a good thing)

    • bmaz says:

      Well, right. Now is not the time for the full court press, that time was when he had 60, then 59, then 58 and even 57 members in the Democratic Senate caucus. That time lasted all the way up to the end of last year, but there was no effort put into it other than on the two Supreme Court nominees, Geithner and Kagan as Solicitor General. Most all of Obama’s judicial nominees have been fairly milquetoast with the exception of Goodwin Liu at the Circuit level and Ed Chen on the west coast and McConnell the “trial lawyer” (gasp!! the horror) on the east coast who were merely run of the mill District appointees. Fer chrissakes, Obama struggled to get David Hamilton done in the 7th, where he should have been gravy. It is really puzzling.

      • BoxTurtle says:

        I think there are two things at the root of that.

        First, the GOP would have voted against Apple Pie if Obama made it. And the GOPers are more skillful politicians than Obama and were able to bring just enough Dems over to their side to stop anything more more significant than Ronald Reagan Day.

        Second, I think the job is just too much for ObamaCo. I have images of a drowning man, or someone being attacked by thousands of bees. Just flailing about.

        Boxturtle (I don’t buy the 11 dimensional chess theory)

  3. earlofhuntingdon says:

    Mr. Obama’s explanations for why he fails to nominate, let alone fight for, his executive branch officials constantly change. It invites wonder as to what his goals are. Is it because naming names he would support and fight for – as opposed to the false choices of those like Dawn Johnsen that he intentionally let twist in the political wind – would too readily disclose his conservatism, too quickly alienate the base that put him in office under arguably false pretenses?

    Does he not know the importance of establishing his own network and of being the chief sponsor for the leadership team on which government formally and unofficially relies, in this generation and the next?

    Mr. Cheney knew its importance. He arrogated to himself authority over all key executive branch appointments even before he returned to Washington, before it was clear he and Bush had been “elected”. He kept an iron grip on those nominations and the appointment process until they both left Washington.

    Does he not know how to hire people who know what he doesn’t, and who can manage the tasks they’re given? He hired Rahm Emanuel as COS, then his replacement, Mr. Daley. He knows how to tend to what’s important to him.

    That means the entire body of federal hires, both patronage and professional, Obama has willingly chosen to let flow in the CheneyBush current. That leaves in place his opponents’ network, their information flow, their decapitation of the grapevines and network that made the formal Washington work and which Cheney spiked the moment he could so that it would not obstruct his usurpation of power from his man-child president.

    For his own reasons and because of his own choice, Obama doesn’t want government to work as it did before Cheney’s Jacksonian control over it. The corollary to that is his war on whistleblowers, even more vehement than Cheney’s, which keeps official and unofficial professional government denuded.

    The consequence of that is the full Texification of Washington and the federal government. The chief characteristics of that are a nominal government that is, in fact, run by a coterie of private power brokers wholly outside of constitutional government. Whistleblowers might have something to say about that, too, if their president and his pet DoJ weren’t so actively pursuing them rather than the wrongs they might seek to put right.

    • rugger9 says:

      Well said, and it is why I think that Obama has been co-opted by Darth’s cabal in some serious way. The cabal permitted the election knowing that there would be no significant changes on the important stuff (see the prior posts on wiretapping, US attorney follies, Ivins, et al.), and that they would be allowed to spew their BS unhindered by decency, rebuttal, or the need for truth. Plus they left a mess for Obama to clean up, and we saw how that worked in 2010.

      So, unless someone can explain why (aside from how the $$$ always sides with the GOP and that the $$$ owns the vast majority of media outlets) Obama lets his critics have free passes on Constitutional and treaty violations we’ve prosecuted in the past as capital cases (waterboarding comes to mind), this is a theory that fits the facts as we know them now.

  4. earlofhuntingdon says:

    I think the better question is not whether Mr. Obama is willing to fight, but what is he willing to fight for. That he fights indirectly, with proverbial poison rather than a figurative sword or dagger, is an expression of his methodology, not his priorities.

    That he appears not to fight for what his opponents think are essentials, both for his party and the sheer functioning of government, may not be what he’s doing. He may, in fact, be fighting for what he does believes in. That is far more worrying than incompetence or weakness.

  5. MadDog says:

    I certainly have no inside knowledge of how Obama thinks, but I’ll go out on a limb here and describe what it appears like from these outsider’s eyes.

    I get the impression that Obama focuses his time, energy and thoughts on just a few of areas at any one time. For example, health care, the economy, and to some degree, national security, though in the case of national security, his focus has been narrowly on presiding over meetings about Afghanistan, nailing OBL, and stuff like that.

    He does not involve himself nor seem to really care about the civil liberty side of national security. I think that is proven by his record on torture prosecutions (none), the Patriot Act extension (no civil liberty improvements), the ongoing and record-breaking prosecutions of whistleblowers and leakers by DOJ national security state hardasses, and dozens of other civil liberty areas and issues.

    The point is that Obama involves himself in but a few areas, and as a manager seems to blithely ignore involvement and responsibility for almost everything else.

    There is truth to the charge made against Obama during the 2008 campaign that he had little (perhaps too little) experience, and particularly executive-level experience, but that had been the case with other presidents in the modern era who grasped the real significance of the position and managed to put strong teams together that would buttress their own management deficiencies.

    Not so apparently with Team Obama. Not with Rahm, nor with Daley, nor with Biden, nor with Clinton, not apparently with anyone.

    Two and one half years into his first term, and the totally avoidable failure to staff hundreds and hundreds of positions, and even with the public laundry airing of the subject like this Philip and Gerstein article, Team Obama, and more importantly, Obama himself just doesn’t seem to have a strategic vision nor really give a rat’s ass.

    “Hope” and “Change” weren’t strategic visions back in 2008, and should Team Obama be tempted to use them once again in 2012, they will fall on increasingly deaf ears, empty wallets, and citizens without homes.

    You can eat “Hope”, and you can’t sleep under the roof of “Change”!

    • MadDog says:

      Dagnabbit! My edit time ran out.

      …You can eat “Hope”, and you can’t sleep under the roof of “Change”!

      Change that to read: You can‘t eat “Hope”, and you can’t sleep under the roof of “Change”!

    • earlofhuntingdon says:

      Granted, Mr. Obama is not an experienced executive. He has always been a lone wolf. Most successful military and corporate executives develop and foster professional networks that are the means through which they get their ever more responsible jobs done. Mr. Obama’s network seems more rhetorical and personal, not professional.

      Mr. Obama is, however, quite good at appointing people who know how to get done what he wants done. Emanuel and Daley were my examples of that. They collectively decided that they did not want to make creating a professional network – for the government, themselves, their party – a priority. It was a waste of time and a distraction from his agenda.

      That decision was made easier by the fact that after Cheney’s usurpation of the federal hiring and networking process, establishing that network would have taken real work. It would have involved controversy, something Mr. Obama avoids like Dick Cheney avoids sunlight and open government.

      I accept that part of the choice is Bushian message management, a fantasy redefinition of job success to include only what the politician has already done well and excluding the hard, the difficult, the possibly unsuccessful.

      Part of it, I submit, is simply an expression of his innate conservatism, which he buried quite well during his campaign. Part, I submit, is an attempt to subvert the functioning of public government by keeping it off the balance sheet, out of the public eye, in the hands of a private group – some of whom do sit in government, but exercise their power outside of those roles. More precisely, it’s a typical Obamaesque acquiescence in the state of power that he inherited from CheneyBush.

      It’s the way a lot of business gets done in Texas, and in the offshore havens and resource-rich states in which we like to make war.

      • MadDog says:

        Normally I might agree with you, but in this case I can’t seem to find the depth to Obama that some do.

        I’m not saying that he is as shallow as a puddle like George W. Bush is, but I don’t find Obama to be as contemplative and thoughtful as some would imagine.

        I do agree with you that there is a conservatism about Obama that had been masked by some of his progressive-seeming lofty campaign rhetoric. But even in spite of that conservatism, I just don’t get the sense that he spends much if any time philosophizing in the wee hours of the night about the great issues of our time.

        Whatever contemplation he’s done occurred earlier in his life, and now he’s pretty much cast in stone.

        A seemingly pragmatic person, but with few longer term, big vision, grand ideas that actually drive him.

        Certainly a talent for speechifying, but little in the political prowess department. A talker versus a do-er.

        As to Rahm Emanuel, as far as I can tell, there was no more of a short-term political thinker in the White House than he. Win the day, win the hour, win the fookin’ minute! That was and is Rahm Emanuel.

        As to Daley, too soon to tell, but so far nothing yet to be impressed by.

  6. rosalind says:

    June 2, 2017: “The Supreme Court today, in a 8-1 decision, affirmed President Jeb Bush’s right to recess appoint 1,062 Judicial nominees one minute after being sworn in on January 20th, upholding White House counsel Monica Goodling’s finding that the massive vacancies left open by previous President Barack Obama constituted a threat to the safety of the country, and as Commander in Chief Bush retained the right to do anything anytime anywhere. The majority opinion, written by Justice Clarence Thomas, was deemed “Super Secret Classified” by the Dept. of Keeping America Safe, and shredded.

    Vice-President Liz Cheney, who oversaw the Koch Brothers-sponsored “Juidicial Might makes Right” Task Force at the Federalist Society during the post-election transition, was at an undisclosed location and could not be reached for comment.”

    i rosalind, a recovering cynic, have fallen firmly off the wagon.

    • Mary says:

      Very good. Almost not as scarey to me as a round 2 with Obama, but very very good.

      @5 – it’s not just the dwindling numbers of Dems, but also the fact that by not getting a big lineup to start throwing at the Republicans, he didn’t have much deal making fodder – no, “hey, if you work with us on X, we’ll put the thumbscrews on to get you Y yada yada. If you aren’t even creating a lineup, you can’t wheel and deal. And you can’t do things like point to the huge national security problem being created by the Republicans holding back a hundred judicial nominees when YOU are the guy not putting any nominees out there.

      I’d almost rather the Republican bulldozing a huge number off nominees through than the moldy crumbling you get from Dem inaction.

      I really think his strategy is to hit 2012 with this “oh, horrors, the Republican meanies wouldn’t let me get my LIFETIME APPOINTMENT judicial nominees on the bench and now, if you don’t support incompetent, immoral me, those Republican meanies are going to put Sara Palin on the Supreme Court, and you need to be so scared of that you will support me no matter how craven and worthless I am.”

      IOW, another round of the now-too-familiary “be afraid, be afraid, be afraid” sales pitch.

    • john in sacramento says:

      Good thing I wasn’t drinking anything as I read this part

      The majority opinion, written by Justice Clarence Thomas, was deemed “Super Secret Classified” by the Dept. of Keeping America Safe, and shredded.

      Funny, because it’s almost true

  7. Chief says:

    For me the Dawn Johnson nomination, where the WH left her twisting in the wind for 14 months speaks volumes about POTUS. And they are not good volumes.

  8. MadDog says:

    Totally OT – From Wired, this piece made me laugh my ass off in regard to all the Apple fanatics fans who’ve claimed it could never happen to them because Steve Jobs is like…doG:

    Is Apple Ready to Play Cat and Mouse With Malware Developers?

    The Security Update 2011-003 that Apple released on Tuesday directly addressed the Mac Defender malware threat in two ways: It changed the way malware files are detected by enabling automatic daily updates, and it included code to remove at least two of its variants. Despite this, malware developers had a version available that skirts past Apple’s protections within about eight hours. Apple’s patch suggests it plans on being more active in addressing possible malware threats, but is Apple ready to take on the role formerly limited to vendors like Norton, Intego and Sophos?


    …Apple originally took the tack of ignoring the growing Mac Defender problem, but last week the company made a public acknowledgement of the situation and offered a support document that explained how users could get rid of the trojan. It also promised a security patch that could automatically detect and eliminate the malware.

    Apple made good on that promise with Tuesday’s update. But now the company will continually have to look for variants and quickly update its malware blacklist if it wants to stay on its current path.

    This is something that AV vendors have been doing for years, but Apple (so far) doesn’t have a track record for speed when it comes to such matters. It took Apple nearly 10 months to update the definitions file for OSX.OpinionSpy; it took the company 22 days to even acknowledge the Mac Defender was a problem…


    “[Mac OS X] has vulnerabilities, and it will let you download and run malware,” Miller told Ars recently. “The difference is that there simply isn’t that much malware written for it. The bad guys have focused all their energies at Windows … however, as market share for Macs continues to inch up, that equation is going to change and bad guys will begin to focus in on Macs. When the bad guys decide to go after them with gusto, it’ll get ugly fast.”

    Welcome to the real world Apple users!

  9. PJEvans says:

    I’m wondering what Obama thought he was going to be doing as President, since the important parts, like nominations, aren’t getting done.
    (Of course, I’m also wondering how he managed to make it through law school without ever realizing that law isn’t some abstract concept.)

    • eCAHNomics says:

      I remember with such nostalgia how we wondered how W made it thru Yale & HBS. But we always had the silver spoon theory to fall back on.

      O is a much bigger puzzle. He seems to think that his only job was getting elected & that being prez requires only sitting in the oval office.

  10. rugger9 says:

    Dawn Johnson is a case study, as is Goodwin Liu, and several others. The GOP is also going to give the insider hack a hard time for the Commerce Secretary job, which would cost them contributions if there was karma involved.

    Obama wanted to spike these without evidence, but we’re on to it.

    On a related note, the SJ Mercury News yesterday carried an article about SEIU giving M$ to the GOP in the hopes of getting more centrists. It’s a fool’s errand, since no centrist will survive the teabaggers waiting in the primaries, and any GOP pol knows this and will tell the SEIU anything the SEIU wants to hear. Just like 2010. However, it does highlight to me that Obama’s base is not convinced he will fight for them, so they are looking for someone that says they will. Even if SEIU deep down knows that they won’t.

  11. eCAHNomics says:

    Among other considerations, this is stacking up to be one of the most incompetent administrations ever.

  12. PeasantParty says:

    I hate to say it but Obama has painted himself into a corner. He actually hasn’t stood up for one single issue that the voters who put him office rallied behind. Obama, HISTORIC FAIL!

    It really doesn’t matter at this point if he can fill the judiciary positions or not. He is going to lose to the crazies for not listening to the progressives about Jobs, Energy, Healthcare, or any number of other issues. In fact, the repugs are gearing up to go at him on the jobs front.

    Of all animals on earth, they are now going to convince the populace they will be the ones to put America back to work. Snake? Did you say a snake in the grass? I believe they are.

    • bluedot12 says:

      That is why he should be attacking them every day on jobs, deficit, judicial appointments, you name it. He will lose at this rate and we will all lose with him b/c the thugs will dismantel whatever they choose in 2013.

      • PeasantParty says:

        Agreed! Listen, he is part of making the unemployed and especially the long term unemployed disappear. The fake numbers coming out on the jobs and jobless are a clear example. The back room dealings on HCR, and let’s not forget that no legislation can be passed unless it is approved by the banksters first.

        Your above comment about him not thinking strategically is also correct. Talk about being too sexy for your shirt!

  13. bluedot12 says:

    If and when he ever reaches down there and discovers he has balls, I will be here to say hooray!!!

  14. hackworth1 says:

    Obama had that Joe Montana, “throw the game” hang-dog expression on his face as he delivered his disappointingly toned-down inauguration speech.

    It was as if Dick Cheney had given him a “Come to Jesus” meeting.

    Obama has not disappointed Dick Cheney since.

    Obama never disappointed Dick Cheney many times before then either – for that matter.

    Retroactive Immunity for Telco and gutting of FISA occurred before his election.

  15. hackworth1 says:

    What wonderful and inspiring hope there was for a Constitutional Law Student/Expert/Professor to become President after that asshole Dubya.