Obama’s Malign Neglect of Federal Judiciary Redux

Right about this time last exactly one week ago, in relation to predictions of Ruth Bader Ginsburg’s retirement, I was describing the derelict judicial policy regarding nominations and confirmations that has characterized the White House of Barack Obama since he took office:

One of the other hallmarks of Obama’s Presidency is also, save for his two Supreme nominees Sotomayor and Kagan, dereliction of duty and attention to judicial policy and nominee confirmations. The state of rot and decay ongoing in the liberal federal judiciary is shocking, and Obama literally has abandoned the cause.

The all too predictable response to any such suggestion from the blindered Obama apologybots was “but but but Republican obstruction”. However said predictable refrain from Obamabots and party hacks belies the obvious fact that Republican obstruction has nothing to do with the lack of attention to nominations by Obama. As I said many times, here in June of 2011:

…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.

Friday Joan Biskupic, in her first major piece at her new perch as head legal editor for Reuters, laid out a scorching case against the feckless and derelict policy by Obama on nominations by focusing on the most important Circuit Court of Appeal, the DC Circuit:

Obama’s failure to put anyone on the 11-judge D.C. Circuit, where three vacancies now exist, reflects both rising partisanship and Obama’s early priorities.
“That would leave the second most important court in the land without the kind of balance he might have achieved,” Gerhardt added.

Of the eight active judges on the D.C. Circuit, five are appointees of Republican presidents, three of Democratic presidents. Although the court has 11 members, it routinely hears cases in three-judge panels, assigned randomly to cases, as do other federal appeals courts throughout the country.
Two of the three openings on the D.C. Circuit have existed since Obama took office. Obama nominated Caitlin Halligan, a former New York state solicitor general who is now general counsel for the Manhattan District Attorney’s office, in September 2010.

The DC Circuit is the most important circuit court because it hears the appeals on all the most important cases emanating from the seat of our federal government. If it involves Executive Branch decisions, federal agency decisions, decisions on foreign entanglements of the US government and, notably over the last decade plus, all Guantanamo detention cases. The entire set of federal Habeas Corpus law appears to lay in the hands of the DC Circuit and Obama, through derelict neglect, has put it in the destructive hands of Janice Rogers Brown.

There were two openings on the most critical Circuit court in the country when Barack Obama took office, and he did not bother to even make a single nomination for nearly two years and, instead, waited until his huge senate majority was effectively down the crapper with the 2010 Congressional election disaster. Since that time, another seat has gone vacant on the DC Circuit, and Obama barely lifted a finger to support his sole nominee, Caitlin Halligan, whose nomination went down in flames in December.

As Biskupic reports, the Administration swears they will be making nominations any time now, but fat chance of getting any movement in an election year, and especially after pulling the nuclear recess appointment stunt for the CFPB and NLRB slots. The White House PR blather about coming DC Circuit nominations is nothing but feel good pablum for the naive at this point.

Compare and contrast the reckless malign neglect of Obama with the dogged determination and followthrough effort and success of Bush and Cheney. When Bush nominated Miguel Estrada in 2001, he had a lot smaller numbers in the Senate behind him than Obama has had at any point. The Democrats blocked Estrada. But the Bush White House and their supporters did not put their tail between their legs and hide, they made an unholy racket across the political spectrum that directly led to the confirmation of four other judges to the DC Circuit, including Janice Rogers Brown, Brett Kavanaugh and the now Chief Justice, John Roberts.

The noise and effort resulted in heavy conservative salting of the DC Circuit, and in Miguel Estrada being made a martyr for the ages that still carries powerful connotation for conservatives. But such true grit, determination and attention to judicial policy is not the stuff of Barack Obama. Liberal judicial policy will be paying the disastrous consequences for decades because of the malign neglect today. Hey, you never know, if Obama had filled the three seats on the DC Circuit, we might still have effective Habeas Corpus today.

21 replies
  1. phred says:

    if Obama had filled the three seats on the DC Circuit, we might still have effective Habeas Corpus today

    I think you have hit on the crux of the problem. What once seemed like inepitude and neglect, looks more to me to simply be a symptom of Obama’s utter contempt for the rule of law and the role of the courts. Why would the Billion Dollar Unitary Executive have any interest in nominating people to fill positions that might rule against him in the only branch of the federal government that might yet challenge his authority?

    If he nominated the authoritian conservatives that he would likely favor, it would create problems for his re-election campaign. If he nominated liberals that would placate the base, he would run the risk of judicial opposition in court. Simpler really to let the third branch whither into insignificance. Maybe Obama does play 11 dimensional chess afterall, it’s just that we are his opponents, not the neocons.

  2. thatvisionthing says:

    o/t — please delete this if it’s too disruptive — but, are you watching this? Go to youtube’s front page. There’s a video by DireBoris, “Enough is enough, Youtube. Together We’re Strong.” It’s 16:13 minutes long, it was posted on Feb. 24, and it’s got 3,243,485 views right now, 6,249 likes. Dire and Boris are PISSED about youtube’s new changes of crass commercialism disrupting the community, and they lay it out and present their plan for a community, uh, intervention? sarting at 4pm Eastern today. Which is like, now. Sounds like a flashmob of questions?

    Enough is enough, YouTube. Together we’re strong.
    Uploaded by DireBoris on Feb 24, 2012

    http://www.twitch.tv/DireBoris – LIVESTREAM WILL BE ON 26TH FEBRUARY 4:00 PM EST / 9:00 PM GMT

    Dire: So, this is the important part of the video.
    Boris: Yes, Dire, we bring truth to community! We fight dictator. Nobody orders Boris or Dire or youtube community around. And that is where line goes and nothing more.
    Dire: All right, yeah. The important part of the video — this is the main reason I want to make the video is because we will take action. We will say no to whatever they’re trying to do with the youtube. It’s our website. It’s yours and it’s mine. If it wasn’t for my video, the website would suck big, you know? It would be sshhhit. All right? So, we’re going to make a livestream on Sunday — what was it again, 4 pm Eastern Standard Time, Boris?
    Boris: Yes, yes, exactly.
    Dire: I will put all the information in the description. The livestream thing will be placed above everything, and I will place so many links to forum threads that talk about youtube issues. There are so many issues. Like a few days ago, there was the issue where you couldn’t reply to messages. They fixed that, but there are — you probably know this. It says 75 new comments on every video, and they are like two hours old. That’s one of the issues. The other issue is the algorithm they use to put videos in your Related Videos section which is most likely spam from reply people.
    Boris: Yes, and two weeks ago I click report button and they can’t fix simple bugs in three weeks, I don’t understand! They say —
    Dire: They’re too busy making money, Boris. That’s what it’s all about. But anyways, the livestream, we will go to this forum — don’t do it yet though. On Sunday we will gather an army of the youtube community — I hope this goes well because this is going to be huge. We will Livestream it, it will be live — we will all go to the Post A Question and we will spam the shit out of this forum saying that we don’t want the new design. Everybody can post one question. We are not going to spam it like extremely, we’re going to post one question each, and if we have, I don’t know, a thousand viewers on the video, I mean on the livestream, that’s it, a thousand threads. They’re going to at least read one of them. So.
    Boris: Yes, if ten thousand, ten thousand threads! Yes, mathematics!
    Dire: Yes, that’s Boris’s math for you. So, anyways, Sunday, 4 pm Eastern Standard Time, we will livestream, we will spam this forum, we will take action against what is happening, and we won’t let this happen. All right guys?
    Boris: Because youtube is our country.

    Banner overlay:

    We’re not just going to post on their forums, but spam their Twitter, Facebook and everything else we can possibly do. Join us on the 26th February!

  3. guest says:

    @phred: What Phred said. And if I may add a cougar, I mean PUMA, growl, can you imagine Hilary letting this happen? Or letting republican USAs defy her and refusing to resign. There would have been a whole lot of US marshals escorting those fascists to their cars with a carboard box full of pictures of their ugly kids.

  4. thatvisionthing says:

    @thatvisionthing: My browser crashed. When I rebooted, Boris was arguing with an admin from TwitchTV, the livestream hoster, who made them take it down. Offline, now over 41,000 views.

  5. orionATL says:

    about the negotiations among senators that put brown and william prior onto appeals courts:


    from that msnbc report:

    “…Following Brown’s confirmation, the Senate voted 67-32 to end a filibuster of former Alabama Attorney General William Pryor — the last of the three nominees whom seven Democrats agreed to clear in exchange for Republicans not banning the [filibuster]…

    …Since it takes 60 votes to overcome a filibuster, 41 senators have the ability to block a nominee with majority support from ever getting a vote on confirmation…

    …A vote on Brown’s nomination had been blocked on Nov. 14, 2003, because her supporters could not get the 60 votes needed under Senate rules to end prolonged debate, known as the filibuster…

    …Agreement on unblocking nominations
    Under a bipartisan memorandum of understanding signed May 23, seven Democrats agreed to not support filibusters of Brown and two other Bush nominees, Priscilla Owen, who took her oath of office Monday as a federal appeals court judge for the Fifth Circuit, and Pryor.

    After Democrats used filibuster threats in 2003 and 2004 to block a vote on Pryor’s nomination, Bush gave him a recess appointment to the appeals court on Feb. 20, 2004, saying, “If Attorney General Pryor were given a vote on the floor of the Senate, he would be confirmed…

    …Once Pryor is either confirmed or voted down, the filibuster of judicial nominees again becomes a live option, if any of the seven Democrats who signed the May 23 accord decides that a Bush judicial nomination has created “extraordinary circumstances…”

    you might be asking yourself, “who were those seven “centrist” democrats who signed an agreement with “centrist’ republicans john mccain (az), john warner (va,) and 5 other republicans in may,2005?”

    well, the democratic members of the so-called “gang of fourteen” were:

    ben nelson (neb)

    joe lieberman (conn)

    william byrd (wva)

    ken salazar (colo)

    daniel inouye (hi)

    mark pryor (ak)

    mary landrieu (la)

    with senators like these, who needs a republican senator.

  6. P J Evans says:

    Not supporting his nominees seems to be a very bad habit for Mr O. Someone explain again why his nominees are so important that we have to re-elect him?

  7. jo6pac says:

    @P J Evans:
    Yes I’ll be voting Green this time around and from now on.


    (waited until his huge senate majority was effectively down the crapper with the 2010)

    This wh has operated this way since day one and now they whine that you have to vote for us because the other guys are bat-shit-crazy. The repugs would kill us off quickly and the demodogs are doing the same thing only by a thousand cuts.

  8. bmaz says:

    @jo6pac: You’ll get no gruff from me on that; I have been whining like that damn Geico pig since day one, well before it was semi-fashionable among the progressive left.

    And PJ Evans is right, it is not just lack of quality nominations by Obama, it is that, save for the two SCOTUS nominees, his support for the nominations he actually brings himself to make ranges anywhere from pathetic to non-existent.

  9. P J Evans says:

    I’m wondering if he slept through his civics and government classes in high school – or cut them – because I can’t see any other way that he could have missed learning that being president is not just ‘I say do this, and it gets done’.
    (That, to me, is pretty basic knowledge that someone who is supposed to be a constitutional lawyer, and anyone in politics, should have down cold.)

  10. Bob Schacht says:


    ben nelson (neb)
    joe lieberman (conn)
    william byrd (wva)
    ken salazar (colo)
    daniel inouye (hi)
    mark pryor (ak)
    mary landrieu (la)

    1. Nelson isn’t going to run for re-election this year.
    2. Lieberman is also retiring
    3. Ken Salazar is now working with the Admin.
    4. Dan Inouye is also retiring

    I’m not sure about the others, but with most of the BlueDog Dems gone, maybe this can be revisited with the next Congress– especially if the Democrats retain a majority in the Senate.

    Bob in AZ

  11. Bob Schacht says:

    bmaz, you got it all wrong. The GEICO pig *squeals* with delight, and is not whining. Dunno where we can get a decent Animal depictor of whining. The mewling noise of the hyenas when the lions get to the carcass before they do? But who knows that sound? Maybe the sound of a dog who desperately wants to go outside, but his “owner” won’t let him?

    Bob in AZ

  12. orionATL says:

    @Bob Schacht:

    thanks, bob.

    i thought inouye had already declared he’d run once more and was determined to hang on until either they carried him out boots first or he had beaten robert byrd’s longevity record (june, 2014),

    but as a part-hawaiian, i’m sure you’re more current than i.

  13. Bob Schacht says:

    @orionATL: You were right! I got my facts mixed up. In any case, Inouye’s term extends to 2014, and he is still, as you say, intending to stay there forever. Hawaii’s other senior senator, Daniel Akaka, is the one who’s retiring, resulting in one of Hawaii’s most interesting Senatorial elections in decades. I should probably check my memory on this, too, but the two major candidates are *women*– current rep. Mazie Hirono vs. former governor Linda Lingle (R).

    Bob in AZ

  14. YankeeFrank says:

    Its becoming more and more apparent that Obama is not a hard working man. His inattention to many issues has led to his underlings holding immense power. And decisions that can’t be made without him simply are not made. If its not a warmongering move he seems uninterested. A raging narcissist with little interest in the day to day running of our nation… I have the same feeling of neglect of the country I had during Bush’s 8 years — huge events occur and deserve attention from the executive and we get nothing. With Bush this became fully apparent not just with his lack of interest in the warnings around 9/11, but also Katrina and many other smaller incidents. With Obama, the Gulf spill in ’09, and his lazy approach to the financial crisis were pretty solid indications of who we were dealing with. He sold himself in a completely different way to what he really is. At this point I believe we would’ve been better off with Hilary, at least due to the fact that she is actually a hard working person. I wonder what Obama actually does all day when he doesn’t have public appearances to make. The man is a shell…

  15. orionATL says:

    hey, bmaz

    where’s the music, man?

    how about some limbo,

    you know,

    how low can you set the bar

    and still dance under it?

  16. pdaly says:

    Napoleon, though self-annointed emperor that he was, at least kept alive some of the ideals of the French Revolution and set up courts for all people, to be used by former aristocrats and plebes alike.

    Obamapoleon, by contrast, likes the empire stuff and the fighting in foreign lands, but seems to be not all that into justice.

Comments are closed.