Obama has, of course, left his mark on the high court by nominating Sonia Sotomayor and Elena Kagan. Their confirmations leave those two seats for decades in liberal hands, and marked a historic diversification of the court.
But, depending on what the Senate does in these final days,Obama’s record on the rest of the federal judiciary will show one more opening on the nation’s powerful 13 courts of appeal than when he took office, and more than a dozen additional vacant district court judgeships.
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) blames Senate Republicans for foot-dragging on nominees that he says are utterly uncontroversial.
“These delays mean that the Senate will, again, be needlessly forced to devote the first several months of next year confirming judges who could and should have been confirmed the previous year,” Leahy said earlier this month.
He added that the increase in vacancies “is bad for our federal courts and for the American people who depend on them for justice.”
Sen. Charles E. Grassley of Iowa, the committee’s ranking Republican, responds that the Senate has confirmed at least as many as were approved during President George W. Bush’s first term. “The continued complaints we hear about how unfairly this president has been treated are unfounded,” he said.
Russell Wheeler, a judicial scholar at the Brookings Institution, has taken a more detached look at the process. “There is so much propaganda out there,” Wheeler says. “It’s almost as if they are speaking different languages.”
Wheeler’s conclusion: “The contentiousness that affected President William Clinton’s and President George W. Bush’s efforts to appoint judges to the courts of appeals did not appear to worsen during Obama’s first term, but battles have heated up over district nominations.”
Drastically increased delays in confirming district court judges are part of the reason for the higher vacancy rates, Wheeler said, but the Obama administration is responsible for sending up fewer nominees and taking longer to do it.
District judges are at the first tier of the federal judiciary; they decide individual cases and their decisions do not create precedent for other judges. In the past, confirmation of district judges was seen as somewhat routine.
But that has changed, Wheeler said, with longer wait times and more contested votes. The average time from nomination to confirmation for a Clinton district judge was about three months. That grew to 154 days for a Bush nominee, Wheeler said, compared to 223 days for Obama’s choices.