President Obama’s record on nominating federal judges lags behind those of his predecessors, and nowhere is his failure more glaring than on the prestigious U.S. Court of Appeals for the D.C. Circuit.
Senate Republicans are pitching a shutout with Mr. Obama’s nominees to the influential appellate court, long considered a training ground for the U.S. Supreme Court. Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg and Chief Justice John G. Roberts Jr., as well as past Chief Justices Fred Vinson and Warren Burger, served on the D.C. Circuit.
The court has four vacancies out of 11 seats, the highest vacancy rate of any federal appeals court, and Mr. Obama has the dubious record of being the only president to serve a full four-year term without successfully nominating a judge to that court. George W. Bush put four nominees on the bench; Bill Clinton had three
“It does seem that the D.C. Circuit is being singled out,” Patricia Wald, former chief judge of the court, said in a discussion of the problem at the liberal Center for American Progress.
The battle is heightened because the court has jurisdiction to rule on the decisions of federal agencies such as the Food and Drug Administration, the National Labor Relations Board and the Environmental Protection Agency. It also handles a disproportionately large share of national security cases, such as questions regarding the detention of terrorism suspects.
Mr. Obama’s latest setback at filling this court was March 22, when he withdrew the nomination of Caitlin Halligan, general counsel for the Manhattan district attorney’s office, at her request. Senate Republicans, accusing Ms. Halligan of harboring an activist agenda, had blocked a vote on her nomination for the second time.
The president said that he was “deeply disappointed” and that the vacancies on the second most powerful court in the land were “unacceptable.
“He hasn’t appointed anyone to that court yet,” said Carl Tobias, a law professor at the University of Richmond. “That’s the major problem at the appellate level.”
Mr. Tobias said the judicial vacancies — nearly 10 percent of federal judgeships nationwide are open — are being exacerbated by automatic budget cuts, known as “sequestration,” that are trimming other court personnel.
“It’s even more urgent to get the judges confirmed,” Mr. Tobias said. “Sequester takes more resources away from the courts. It just puts more pressure on everybody in the system.”
Blame on both sides
Observers say Senate Republicans and the White House share the blame for the slow pace of confirmations. The Senate has confirmed nine judges this year, and a White House official said these nine judges waited 144 days on average for a floor vote. President George W. Bush’s nominees, by contrast, waited an average of 34 days for a floor vote at the same point in his presidency.
White House press secretary Jay Carney on Monday urged senators to confirm the president’s new nominee for the D.C. Circuit, deputy solicitor general Sri Srinivasan, saying he has support from conservative legal standouts such as Paul Clement, Theodore B. Olson and Kenneth W. Starr.
“The D.C. Circuit, as you know, is often considered the nation's second-highest court, but it has twice as many vacancies as any other court of appeals, and its workload has increased by over 20 percent since 2005,” Mr. Carney said.
David Baron, managing attorney for the nonprofit group Earth Justice, said the White House is guilty of a “failure in responsibility” by nominating only two candidates to the court in the first three years.