- The Washington Times - Monday, December 27, 2010

President Obama won two Supreme Court nominations in his first Congress, but his overall stamp on the federal judiciary has been muted as fights over judges have taken a lower profile than in recent years.

All told, the administration secured confirmation of 62 judicial nominees, including Justices Sonia Sotomayor and Elena Kagan - which is substantially lower than the 100 district and appeals court nominees President George W. Bush saw the Senate confirm during his first two years in office.

Democrats said Mr. Obama fell victim to the same GOP-led blockade that impeded other parts of their agenda, forcing the Senate to send dozens of nominations back to the White House without action last week, including 19 who had been voted out of the Judiciary Committee and only needed a floor vote.

“Just a few years ago, Senate Republicans were united in demanding that every nomination reported by the Senate Judiciary Committee to the Senate deserved a vote. They argued that was our constitutional duty,” said Sen. Patrick J. Leahy, Vermont Democrat and committee chairman. “Well, the Constitution has not been amended. The only thing that has changed is that the American people changed presidents.”

He said Republicans delayed nominee after nominee, so that it took six times as long for Mr. Obama’s appeals court nominees to see a vote after being reported out of the committee, compared with the timing under Mr. Bush.

But Republicans said confirming 62 judges constituted “good progress,” particularly since two of those were Supreme Court justices, who require much more time and vetting, and slowed down the process on other nominees.

Senate Minority Leader Mitch McConnell, Kentucky Republican, said the nominees returned to the White House included four controversial picks whom Republicans were going to take steps to block, and 15 others who weren’t nominated until late in the process - and who got caught up in lame-duck politics.

He urged Mr. Obama not to try to push the four controversial nominees again.

“I am hopeful that we can continue to work in a bipartisan fashion in the next Congress on judicial nominations, and that the president will join us in that effort by not nominating or renominating judicial nominees who show a willingness to follow their own beliefs, rather than the requirements of the law,” he said.

Republicans also said Mr. Obama was slow in getting nominations up to the Senate.

During the Bush presidency, judicial nominations were among the most heated battles fought in Congress, and led Senate Democrats to pioneer a strategy of repeated filibusters on a handful of Mr. Bush’s appeals court picks. That included seven separate votes to block Miguel Estrada from joining the D.C. Circuit Court of Appeals.

In 2005, faced with continued blockades, Republican leaders contemplated a rules change eliminating the filibusters for judicial nominees. But that was averted when the bipartisan “Gang of 14” emerged, vowing to take the so-called “nuclear option” off the table while helping Mr. Bush shepherd nominees through the process. That eased confirmation for both of Mr. Bush’s Supreme Court nominees.

Since then, though, the fights have receded from the floor, but remain intense behind closed doors.

Senate Democrats said Republicans are actively blocking a handful of Mr. Obama’s court nominees, including Goodwin Liu, whom the president tapped for the 9th U.S. Circuit Court of Appeals, and Edward Chen, whom he nominated for a district court seat in California. In both cases, the GOP said the nominees stray too far into judicial activism.

“Their statements, writings, and records show a willingness to put their own views ahead of the dictates of the law and the Constitution,” Mr. McConnell said. “Senate Republicans are not prepared to consent to their confirmation, or to a process that will facilitate their confirmation.”

All told, Mr. Obama won confirmation of 16 appeals court judges and 44 district court judges, as well as the two Supreme Court nominees. Mr. Bush won 17 appeals court judges and 83 district court judges.

Liberal pressure groups said they want to see a more determined focus in the next Congress, and pointed to lame-duck successes in pushing through Democratic legislative priorities as proof that Republican tactics can be overcome.

“We hope that same energy is applied to judicial nominations in the 112th Congress to ensure that the endless abuse of Senate procedures is not repeated and that all vacancies in the federal judiciary are filled,” Nan Aron, president of the Alliance for Justice, wrote for the Huffington Post website.

But the Democrats’ task is likely to be tougher. During at least part of the last two years, their caucus controlled 60 seats, or enough to overcome a filibuster. In the next Congress, they will hold just 53 seats.

Republicans may also look for an olive branch from Mr. Obama, who at the beginning of his term failed to follow the lead of Mr. Bush, who in his first batch of judicial nominees submitted one of President Clinton’s stalled appeals court nominees, Judge Roger Gregory.

Judge Gregory became the first black to serve on the 4th Circuit Court of Appeals, which encompasses five states from Maryland to South Carolina. Mr. Clinton had made Judge Gregory a recess appointment late in 2000, and seven months later, the Senate followed Mr. Bush’s recommendation and gave the judge a full, lifetime appointment.

Mr. Obama never pledged to follow Mr. Bush’s example, though Republican senators early in 2009 had said it would be a good way for the new president to make good on his broader pledges of bipartisanship.

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