Should Prez Obama become much more aggressive on judicial appointments if he gets a second term? How exactly?

The question in the title of this post is prompted by this commentary from Professor Pam Karlan in the Boston Review, which carries the headline "Empty Benches." Here are excerpts:

Recent Republican administrations have pursued a judicial nomination strategy that seeks to appoint young, deeply committed conservative lawyers to the federal district courts and courts of appeals.  Republican activists pressed judicial nominations as a priority, and conservative presidents and senators worked hard to get these nominees confirmed.  The result is not just a deep farm team of potential Supreme Court nominees, but also a host of conservative judges inscribing their views of constitutional law and their interpretations of statutes in thousands of cases that never reach the Supreme Court.  If their cases are appealed to the top, then those judges’ opinions shape the terms of the debate in the high court.

By contrast, the Obama administration has done relatively little to bring the courts back into balance.  When Obama was sworn into office, there were 55 vacancies on the federal bench.  There are now more than 75, and Obama will likely “become the first president since Reagan, and possibly much earlier, to finish his first term with more vacancies than he inherited,” according to Alliance for Justice. (Vacancies weren’t tracked before the Reagan years.)

To be sure, much of the problem is conservative obstructionism.  Several of the president’s most prominent nominees have been filibustered.  Many others have been victims of “blue slips”—an internal Senate procedure that allows either senator from a nominee’s home state essentially to block a nomination. Even candidates who ultimately are confirmed by overwhelming votes have faced a series of procedural roadblocks. And the prospect of having to put their careers on hold has probably dissuaded many qualified candidates even from seeking nominations.

But conservative obstruction is not the only problem.  During the period when Democrats held a filibuster-proof senate, the administration moved far too slowly to make nominations.  Granted, it was a busy time, with the economic crisis, two Supreme Court openings, and health care reform occupying the administration’s attention.  But the delay also reflects a sense that judicial appointments are less important than other policy levers and that the president’s base does not really care about the issue.

Moreover, while the current administration has achieved an admirable degree of gender and racial diversity among its picks (nominating roughly two times more women and persons of color, by percentage, than the preceding administration had), its court of appeals nominees are generally older than their conservative counterparts.  And very few of them have backgrounds either as public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought.

The administration’s inability to fill vacant seats on the federal bench has both immediate and long-term effects.  Right now, more than half of Americans live in jurisdictions facing what the Administrative Office of the U.S. Courts calls “judicial emergencies”: their empty benches can’t handle heavy caseloads. Because criminal prosecutions take priority, plaintiffs with civil claims — workers, victims of government misconduct, consumers, and others — face severe delays in vindicating their rights.

In the longer term, vacancies accrued during a liberal-leaning administration that remain open for succeeding conservative administrations to fill will ensure that courts continue to skew to the right, meaning that progressive legislation and regulations will be undercut when it comes time to enforce them.  The lack of a vigorous judicial response to conservative versions of originalism and “strict construction” — which often means little more than a cramped reading of broadly worded statutes and constitutional provisions — will bias popular discussion and debate.

Professor Karlan's answer to the questions in the title of this post seem clear:  via this commentary, she is essentially urging an Obama Administration to make a concentrated effort to "appoint young, deeply committed" liberal lawyers with a background as "public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought." (Notably, Karlan's own professional background fits her description, but at age 53 I wonder if she even considers her "generally older" than her own view of the ideal Obama nominee.)

I share Professor Karlan's view that President Obama and others in his administration probably ought to give more attention and emphasis to judicial nominees, especially given the large number of judicial emergencies that can negatively impact the administration of justice in so many ways.  That said, I am more inclined to praise the Obama team's efforts to date, particularly for its ability to bring much greater gender and racial diversity to the federal bench.  (My chief disappointment on this front has been Obama's apparent eagerness to elevate persons who are already judges rather than often seeking to bring in bold new perspectives into the judiciary.)

I wonder if readers have thoughts on this front (which, of course, impacts sentencing law, policy and practice in many ways).  In particular, I wonder if anyone would urge the Obama Administration to start gearing up for a massive post-election judicial appointment push soon if Obama is elected to a second term.  I do not know if any re-elected president has ever put forward a huge bunch of judicial nominations in the early days of a second term (or even in the closing period of his first term when a lame duck senate could perhaps be prodded into some confirmation activity).   But it wold be quite an impressive spectacle if the Obama Administration could put up candidates for every open judgeship not  long after the election.  (The same might be said, for that matter, about a possible Romney Administration.)