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September 17, 2009

Should President Obama be praised or assailed for his approach to judicial nominations so far?

Jeffrey Toobin has this really interesting article on President Obama's approach to judicial appointments in the New Yorker. Here are just a few notable snippets that ought to engage everyone:

Just eight months into his first term, Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench — more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. There are five vacancies on the Fourth Circuit alone; just by filling those seats, Obama can convert the Fourth Circuit, which has long been known as one of the most conservative courts in the country, into one with a majority of Democratic appointees. On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total; home-state senators of the President’s party generally take the lead in selecting nominees for these seats, but Obama will have influence in these choices as well. Seven appeals and ten district judges have been named so far. George W. Bush, in the first eight months of his Presidency, nominated fifty-two....

In recent years, the introduction of a Supreme Court nominee has become a major political undertaking. By the time the President announced his choice of Sotomayor, on May 26th, “there were two story tracks—‘eminently qualified’ and ‘an American story,’ ” an official who was involved with the rollout said. “The first part related to her judicial experience, which was more time as a federal judge than any nominee in a hundred years, but we also raised as a subtext her experience as a big-city prosecutor”—early in her career, Sotomayor was an assistant district attorney in Manhattan. “You always have to worry that a Democrat is going to be called soft on crime, but it’s harder to do that if people know she was a big-city prosecutor.”

Some related old and new posts on lower-court judicial appointments:

Some recent and older posts on SCOTUS short-lists:

September 17, 2009 at 11:28 AM | Permalink


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Tracked on Sep 17, 2009 6:22:49 PM


Interesting. I didn't realize that there were that many vacancies.

Toobin seems to be carrying water for Obama. Hamilton was controversial, despite the media that he was a "moderate," and he probably wasn't vetted very well. That isn't to say that Hamilton's some radical extremist, but Toobin's suggestion that he was carefully chosen as an unassailable nominee is a little silly.

To answer the question in the post title, I think it's too early to tell. Obama's priority w/r/t the judiciary must have been getting Sotomayor confirmed. If he had a raft of controversial court of appeals nominations sitting out there, that could have led to delays, sideshows and horse trading in connection with Sotomayor's confirmation.

To illustrate the point with a ridiculous hypothetical, suppose that, several months ago, Obama had nominated Bill Ayers to the Seventh Circuit. Surely that would have affected the speeches and questions at the Sotomayor hearings. I can see Senators saying that "empathy is apparently code for terrorism" and asking Sotomayor whether she's a terrorist and whether she believes that violent overthrow of the government is consistent with the judicial oath she's taken. This is a particularly strong risk in light of the fact that Sotomayor was difficult to criticize based on her own record. Obviously the effect wouldn't be as strong with more realistic nominations, but I think Obama may have held off on making other nominations to the lower court to avoid having those nomnees' dirty laundry aired at the Sotomayor hearings.

Either that or Obama doesn't want too many distractions from the health care stuff he's trying to get through.

Posted by: anonymous | Sep 17, 2009 1:05:22 PM

This excerpt is not the most interesting one from the article. It is well worth the read. The analysis I came away with was this: Obama does not want an activist court and believes the days and need for that are over--many wrongs (in the civil rights arena) have been corrected. More importantly, Obama stresses the democratic function--laws are made by elected representatives, not the Court--as informing who he might appoint. Now, maybe he is being cagey--as long as the Dems are in ascendancy, that is a good strategy and bet--at least as far as what you advertise as your position. I do not claim to know. But as someone who is not keen on the activism of the Court members on the right (nor the right perspective of many Republican appointed district court and appellate judges), I would hope Obama would not be naive. When push comes to shove 12 years down the line and his appointees are still sitting, I would think he would want them to reflect some of the values he considers important.

Posted by: t | Sep 17, 2009 2:59:29 PM

"You always have to worry that a Democrat is going to be called soft on crime, but it’s harder to do that if people know she was a big-city prosecutor."

Which is a big part of the reason we've been inching toward a police state for the past 40 years...with little or no push back from the courts.

Republicans nominate law-and-order Party hacks; Democrats nominate ex-prosecutors with testimonials praising their ruthlessness and fealty to the cops.

I walked precincts for Obama and contributed money, largely in the hope his first SC pick would battle Scalia and the "movement" corporatists, not take the passivity pledge as congress panders, dithers and sells us out to big donors.

Posted by: John K | Sep 18, 2009 3:29:32 PM

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