When the Senate returns next week, they are scheduled to – finally – take up the nomination of Bernice Bouie Donald for the 6th Circuit Appeals Court. That’s good. But even if she wins cloture and is confirmed that will still leave more than 90 judicial openings, over a third of which are classified as judicial emergencies. Barack Obama has a lot on his plate, but he should really add a major push to clear up the logjam this fall.
Part of the context of this is that it’s getting very late in his term. While the kind of obstruction practiced by Republicans during the last three years is unprecedented, it’s far more common for nominations to be held up during the final year of a presidential term. That’s not entirely unreasonable; after all, these are lifetime appointments, and if the out party has the votes to delay a few opening a few months until an intervening election is decided then they are entitled to do so. What differs during this presidency is that Republicans haven’t actually had the votes to successfully block judicial nominations, especially during the 111th Congress, but Obama and Senate Democrats made those selections such a low priority that Republicans found obstruction to be fairly easy.
Obama has done somewhat better this year at his basic responsibility of naming nominees, although even now there are still some 37 openings with no presidential selection. And it’s important to note that there are real limits to what Obama can do. He can’t force Republicans to support his nominees, and he can’t change Senate rules. What a president can do, however, is to raise the profile of an issue, to signal to sympathetic Democrats that something is a high priority for the White House, and to aggressively bargain with those who are willing to cut deals. So far, on judicial nominations other than the two SCOTUS picks, Obama hasn’t been interested in doing any of those things. At least for his first term, he’s running out of time. If he does care about filling the bench so that the courts run well and justice can be done, and about influencing policy outcomes by putting like-minded people on the courts, the time to do it is right now. And liberal activists who care about those things should be letting the administration – and the Senate – know about it.