President-elect Barack Obama will be the first president to have participated in Senate filibusters of judicial nominees - a distinction that conservatives say will haunt him in showdowns over anticipated nominations of liberal, activist judges to the federal bench.
Steeling themselves for battle over nominations, Senate Republicans say the president-elect’s voting record and long simmering resentments over Democrats’ treatment of President Bush’s nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote on his picks.
“It appears he is more committed to the appointment of activist judges than even President Clinton,” said Sen. Jeff Sessions, Alabama Republican, a member of the Judiciary Committee. “One of the most troubling things of all was that he was in a distinct minority to vote against [Supreme Court Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr.]. That says a lot about his judicial philosophy, I’m afraid.”
Mr. Obama joined an unsuccessful filibuster against Justice Alito in 2006 and numerous successful filibusters of circuit court nominees. He sided with 39 fellow Democrats, one Republican and one independent in opposing the Alito nomination and was one of 22 Democrats to vote against confirming Judge Roberts in 2005. Both nominees to the Supreme Court won confirmation.
Mr. Sessions said Mr. Obama’s nominees will face Republican roadblocks in committee and filibusters on the Senate floor if there is any indication they threaten to politicize the courts or legislate from the bench.
Federal judgeships are a familiar flash point for partisan skirmishes in the Senate. Even with Republicans in control of the Senate from 2003 through 2006, Mr. Bush struggle against Democratic filibusters to place judges on federal appeals courts.
Mr. Obama put conservatives on guard with a 2001 radio interview, while still a member of the Illinois state Senate, in which he complained that Chief Justice Earl Warren’s court - one of the most liberal in Supreme Court history - “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution” in order to bring about “redistribution of wealth.”
“Most liberals are not quite as unabashed as that,” said Curt Levey, president of the Committee for Justice, a group advocating constitutionalist judges. “I fear that Obama will appoint nominees that are very liberal but … I want to give him the benefit of the doubt.”
In the same vein, conservatives balk at Mr. Obama’s pledge to fill the federal courts with judges in the mold of Justice Ruth Bader Ginsburg and the late Justice Thurgood Marshall, two of the most liberal judges in the court’s history.
The Obama transition team declined to comment on the president-elect’s record on judges or the prospects for the next administration’s judicial nominees.
Sen. Patrick J. Leahy, chairman of the Judiciary Committee, insisted Democrats gave Mr. Bush’s nominees a fair shake. He said regardless of who sits in the White House, nominees will be vetted on merit as long as he wields the chairman’s gavel.
“Partisan Republican critics ignore the progress we have made on judicial vacancies,” the Vermont Democrat recently said, noting the number of federal bench vacancies dropped from 110 in 2001 to about 34 at the close of the session in October.
“They also ignore the crisis that they had created by not considering circuit nominees in 1996, 1997 and 1998,” Mr. Leahy said. “They ignore the fact that they refused to confirm a single circuit nominee during the entire 1996 session. They ignore the fact that they returned 17 circuit court nominees without action to the White House in 2000. … They ignore the fact that they were responsible for more than doubling circuit court vacancies through pocket filibusters of moderate and qualified Clinton nominees.”
Republicans are quick to point out Senate Majority Leader Harry Reid’s broken promise to confirm the usual number of circuit court nominees in the closing two years of the Bush administration. The Senate confirmed just 10 circuit court judges, compared with 15 in the last two years of the Clinton administration, 20 in the last two years of President George H.W. Bush’s term and 17 in the last two years of the Reagan administration.
As of October, 26 of Mr. Bush’s judicial nominees remained pending confirmation.