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Obama Criticized as Too Cautious, Slow on Judicial Posts

By Michael A. Fletcher
Washington Post Staff Writer
Friday, October 16, 2009

President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they consider a key priority.

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration's reluctance to fight, arguing that Obama's emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.

Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23.

"I commend the president's effort to change the tone in Washington," said Wade Henderson, executive director of the Leadership Conference on Civil Rights. "I recognize that he is extending an olive branch to Republicans on the Judiciary Committee and in the Senate overall. But so far, his efforts at reconciliation have been met with partisan hostility."

The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats -- about 10 percent of the total -- remain vacant in appeals and district courts.

The White House predicts that nominations and confirmations will pick up soon. "The administration has been working closely with members of Congress to identify a set of uniquely qualified judicial nominees with diverse professional experiences," said Ben LaBolt, an Obama spokesman. "This process has been bipartisan and we have made every effort to make confirmation wars a thing of the past."

But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.

Analysts say that unlike Bush, who saw judicial appointments as a way to advance a strict view of the Constitution, Obama has not sharply defined his judicial philosophy. Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.

Obama has said he wants to appoint empathetic judges, but "beyond that, he hasn't said much. So it is hard to know exactly what he has in mind," Posner said.

Both the White House and its Republican detractors blame part of the delays on the intense focus early in Obama's term on the nomination of Sonia Sotomayor to the Supreme Court. The White House devoted weeks of work to ensuring her smooth confirmation, and Republican senators and their staffs say they also concentrated on preparing for her August hearings.

While there is always intense focus on the Supreme Court, the lower court nominations offer a president the chance to find judges who share his views on hot-button issues, including abortion rights, affirmative action, the role of religion in public life and the reach of federal regulation.

But Republicans also note that the tables have turned for Democrats, who confirmed fewer of Bush's court nominees than those of any other two-term president in recent history. Many point out that as a senator, Obama voted against Justices Samuel A. Alito Jr. and John G. Roberts Jr., for what they see as ideological reasons.

In March, Senate Republicans urged Obama to renominate two of Bush's appeals court picks who were never confirmed as a gesture to improve a process that has grown "needlessly acrimonious." GOP senators also warned that if they were not consulted on judicial nominees, they would be "unable to support moving forward."

Obama made his first judicial nomination in March, naming Indiana federal District Court Judge David F. Hamilton for a vacancy on the U.S. Court of Appeals for the 7th Circuit.

The White House said Hamilton -- a nephew of respected former congressman Lee H. Hamilton (D-Ind.) who had support from Republican Sen. Richard G. Lugar (Ind.) -- symbolized the president's intention to pick moderates.

Hamilton's nomination received a lukewarm response from some liberals, and he still encountered stiff opposition from Senate Republicans. Hamilton embraced Obama's "empathy" standard, which conservative legal thinkers reject as having nothing to do with a judge's work.

"Whatever the empathy standard is, it is not law, and we have courts of law in this country," said Sen. Jeff Sessions (Ala.), the top Republican on the Judiciary Committee.

Republicans also seized on several controversial cases decided by Hamilton. In 2005, he ruled that the daily invocation of the Indiana House too often referred to Jesus and a Christian god in violation of the Constitution. The decision was overturned on appeal.

In 2003, Hamilton struck down part of an Indiana law requiring abortion clinics to give women information about alternatives in the presence of a physician or nurse. That decision also was overturned on appeal.

Nearly seven months after his nomination, Hamilton's name has yet to be brought to the Senate floor.

Last month, the Senate confirmed Judge Jeffrey L. Viken, who will serve on the U.S. District Court in South Dakota. He was the third Obama judicial nominee to win Senate confirmation, following Sotomayor and Judge Gerard E. Lynch, who was confirmed last month to serve on the U.S. Court of Appeals for the 2nd Circuit. Despite ending in a lopsided 94 to 3 vote for confirmation, Lynch's nomination was delayed for three months.

On Tuesday, the White House forwarded another nomination to the Senate: Rosanna M. Peterson, who worked as a criminal lawyer before becoming a professor at Gonzaga University School of Law, to the federal District Court for the Eastern District of Washington. Last week, it announced two new appeals court nominees and one for the district court.

But nominees such as U.S. District Judge Andre M. Davis, Obama's choice to serve on the U.S. Court of Appeals for the 4th Circuit, are still waiting for resolution. Davis was nominated in April and received a hearing within weeks, winning Judiciary Committee approval with a bipartisan vote of 16 to 3 on June 4.

Then, the anonymous holds began, thwarting a final vote on the Senate floor. The delays have annoyed Leahy, the panel chairman. In a statement following Viken's confirmation, he said: "We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations."

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