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November 15, 2009

"Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away"

The title of this post is the headline of this story in today's New York Times.  Here is how it starts:

President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.

Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure.  By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts.

Theodore Shaw, a Columbia University law professor who until recently led the NAACP Legal Defense and Educational Fund Inc., said liberals feared that the White House was not taking advantage of its chance to fill vacancies while Democrats enjoy a razor-thin advantage in the Senate enabling them to cut off the threat of filibusters against nominees.  There are nearly 100 vacancies on federal courts.

“It’s not any secret that among the civil rights community and other folks there has been a growing concern about the pace of nominations and confirmations,” Mr. Shaw said.  “You have to move fairly quickly because things are going to shut down before you know it, given that next year is an election year and who knows what is going to happen in the midterm elections.  No one wants a blown opportunity.”

As I have noted before, the slow pace of judicial nominations from the Obama White House is especially significant for the development of sentencing law and practice.  Lower court sentencing outcomes in the wake of Blakely and Booker have tended to be pro-guideline in part because many federal judges appointed during the Bush years were eager to preserve the toughness of the guidelines and the power these guidelines provided prosecutors.  New blood in the lower federal courts might change these dynamics, but the Obama Administration needs to get cracking to make this a reality.

Some related new and old posts:

November 15, 2009 at 07:30 AM | Permalink


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The article mentions Davis and Diaz, but misses the major point about the 4th circuit. The five vacancies that Obama started with now have 4 nominees, 1 of which is confirmed. I would consider it a major victory in the likely event that all get confirmed before 2010 midterms. Since even if the SC seat held by Karen Williams is empty, there would be a 9-5 advantage.

"making a greater effort to consult with home-state senators"

Can you name a single nominee that hasn't been vetted by way of their senator(s) or opposed by a republican home-state senator, rather than being chosen by the administration?

Posted by: . | Nov 15, 2009 8:56:11 AM

What's the big rush? No need to rush.

Posted by: Supremacy Claus | Nov 16, 2009 6:57:31 AM

Sorry - just a plain old citizen responding. My initial reaction to this blog is "Thank God for samll favors". Obama's previous nominations and appointees have been so abyssmal that I shudder to think what he could do to our judicial system. Please, don't encourage him to destroy another branch of government.

Posted by: dprosenthal | Nov 16, 2009 10:41:18 AM

I'll be more interested in hearing from dprosenthal after he or someone he cares about has turned in vain to arch-conservative courts for relief after being rolled by the ruthless, lumbering, jaded justice system he's so proud of now.

I donated money, blogged and walked precincts for Obama's campaign enthused primarily by the hope he'd appoint AUSAs and justices capable of restoring Rights of Englishmen lost to three decades of conservative court packing.

Instead what we've seen are tepid, "moderate" identity-politics nominations or no nominations at all.

Karl Rove prosecutors are still swaggering through AUSA offices around the country. Obama's first SC appointment could easily turn out to be Scalia in a skirt. The prospect of a future SC appointment capable of championing progressive values seems impossibly slim.

My disappointment is profound.

Posted by: John K | Nov 16, 2009 11:57:46 AM

"No one wants a blown opportunity"

He's talking like time might be running out... but I'd say it has *already* run out. Unless Obama signs a health care bill before Christmas, and within a week rolls out 50 or so pre-vetted nominees, confirmations ain't going to happen until after the mid-terms. And there ain't going to be 60 Dem votes after the mid-terms.

Posted by: anon | Nov 16, 2009 4:43:19 PM

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