- The Washington Times - Tuesday, April 2, 2013

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.

“I’m actually totally baffled by why the White House is so behind on sending names up to the Hill on this,” he said during the Center for American Progress panel discussion. “They need to get on the dime now.”

Mr. Baron also cast blame on “irresponsible Republican filibusters.”

Democratic obstruction

Sometimes, the roadblocks Mr. Obama encounters are set up by members of his own party. When the Senate returns Monday from Easter recess, it is scheduled to vote on the nomination of Patty Shwartz for the 3rd U.S. Circuit Court of Appeals, which covers New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands.

She originally ran into opposition from Sen. Robert Menendez, New Jersey Democrat, who “blue-slipped” her nomination, a rarely invoked tactic in which a senator from a judicial nominee’s home state can kill an appointment simply by failing to return a blue-colored form to the Senate Judiciary Committee.

At the time, Mr. Menendez expressed concern about Judge Shwartz’s legal qualifications.

“Judge Shwartz did not adequately demonstrate the breadth of knowledge of constitutional law and pivotal Supreme Court decisions that we should expect from a U.S. Circuit Court judge,” Mr. Menendez said in a statement last year.

But Mr. Menendez reversed his position after meeting with Judge Shwartz, saying she “adequately allayed my earlier concerns.”

“Judge Shwartz satisfactorily answered questions covering important legal topics such as current law on the rights of corporations under the First Amendment, constitutional limits on Executive Branch power and the application of heightened standards of review under the Constitution,” he said.

It’s not clear how much pressure the White House exerted on Mr. Menendez.

Some reports said that the senator’s real objection was to Judge Shwartz’s longtime romantic relationship with James Nobile, head of the public corruption unit for New Jersey’s U.S. attorney’s office.

That office investigated Mr. Menendez in 2006, in the midst of his election campaign, over his involvement in a rental deal with a nonprofit group that received federal funds. No charges were brought. New Jersey’s U.S. attorney at the time was Republican Chris Christie, now governor.

Mr. Menendez has denied the accusation that he was carrying out a grudge by initially blocking Judge Shwartz’s nomination.

The White House has expressed frustration over the pace of judicial confirmations, but there are few signs that the logjam will break anytime soon.

“This is a problem that needs to be resolved for the sake of our judicial system, for the sake of a carrying-out of justice in our country in an expedited and deliberate manner,” Mr. Carney has said.

The White House said 15 judicial nominees are waiting for confirmation. Of those, 13 were approved out of the Judiciary Committee unanimously, four would fill judicial emergencies, and six are represented by Republican home-state senators who support their nominations.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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