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June 22, 2010

"Obama slowly puts his mark on federal courts"

Active-appeals-court-judges The title of this post is the headline of this extended article at MSNBC discussing the slow increase in the number of federal circuit court judges appointed by President Obama.  Here are the basics:

Democrats control the White House and have the largest congressional majorities enjoyed by a chief executive in decades. But President Barack Obama isn't off to a brisk pace when it comes to putting his imprint on the third branch of government — the federal courts — and some of his allies are disappointed, particularly with the prospect of a slimmed-down Senate majority after the midterm elections.

At the highest level, the Supreme Court, Obama is already having a major impact. His first nominee, Sonia Sotomayor, was confirmed to the high court last year and his second, Elena Kagan, seems well on her way to confirmation. Obama's predecessor, George W. Bush, did not get his second (and final) justice until 2006, six years into his presidency.

But the vast majority of federal cases never reach the high court; they are decided by appeals court judges, making appointments to that level crucial to determining a president's judicial legacy.

The Senate has confirmed nine of Obama’s 21 appeals court nominees. That compares with eight out of 30 appeals court nominees confirmed for Bush at the same point in his first term as president.

But unlike Bush, Obama was elected with a majority of the popular vote and works with a Senate in which his party has 59 senators — at least for now. “You’d expect President Obama, elected with a comfortable margin and with the number of Democratic senators there now are, to have had a lot more judges confirmed by now,” said Russell Wheeler, former deputy director of the Federal Judicial Center, the research agency for the federal courts. Wheeler is a fellow at the Brookings Institution.

Eleven prominent liberal law professors complained to Obama in an open letter in February that “your Administration must act with far more energy and dispatch in the vitally important task of nominating and confirming federal judges.”

The president has nominated seven appeals court judges since then, leaving six appeals court vacancies for which he has yet to nominate replacements. And Obama has not sent the Senate any nominees for the two vacancies on the D.C. circuit court, often seen as the most powerful appeals court. One vacancy dates to 2005, the other to 2008.

While a president controls the nominations, he cannot dictate the pace of confirmation. A determined Republican minority and a Senate preoccupied with other items have stymied quick action on some nominees.

Seven appeals court nominees have won Judiciary Committee approval but await a floor vote. Sixth Circuit appeals court nominee Jane Stranch has had the longest wait: she won approval by the committee last November but hasn’t gotten a floor vote.

Of course, federal sentencing fans know that appointments to the district courts are more likely to impact federal sentencing realities more than appointments to the circuits.  Nevertheless, as I noted in a post on election night, over time the Obama Administration is likely to impact federal sentencing law and policy more through its appointments than through any distinct policy initiative.

Some related new and old posts:

June 22, 2010 at 11:17 AM | Permalink

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