The Washington Post

How controversial are President Obama’s judicial nominees?

As the White House makes a concerted push to change the conservative makeup of the U.S. Court of Appeals for the District of Columbia, it's worth asking, are his judicial nominees really controversial?

A stop sign. Washington Post photo.

Let's look at the facts.

Overall, President Obama’s judicial nominees wait an average of 116 days on the Senate floor for a vote, according to the White House, more than three times longer than President George W. Bush’s judicial nominee average wait time of 34 days.

While Obama has also been slow to fill some court vacancies, many nominations have stalled even after making through the Judiciary Committee unanimously. At this moment 15 such nominations are awaiting a Senate floor vote, 13 of which made it out of committee unanimously. The White House has begun to make a public case for moving faster, though it has not engaged in the sort of horse trading that usually helps ease legislative logjams.

Take Sri Srinivasan, the principal deputy solicitor general who faces a Senate Judiciary Committee confirmation hearing next week. He spent five years working in the Solicitors General's office under George W. Bush, and two years working in the same office under President Obama. In the interim he worked for the private law firm of O'Melveny & Myers, representing corporate clients including former Enron executive Jeffrey Skilling.

In fact, some liberals privately worry Srinivasan's not liberal enough -- though they take some comfort in the fact he argued forcefully before the Supreme Court last week for striking down the Defense of Marriage Act. And Alan Morrison, George Washington University Law School's associate dean for public interest and public service, said a lawyer's previous client list does not always provide an clear indication of how they will rule once appointed.

"He has represented corporations, but lots of great judges represented corporations and then turned out to be different when they got on the bench," Morrison said.

Still, Srinivasan's centrist credentials don't guarantee him a speedy confirmation. Take a look at how some of Obama's other nominees have fared over the past four years:

* On March 11 the Senate confirmed Richard Taranto for the Federal Circuit Court by a vote of 91 to 0, 484 days after the president nominated him.

* On Feb. 25 the Senate confirmed Robert Bacharach by a vote of 93 to 0 to serve on the Tenth Circuit in Oklahoma, after he waited 263 days to get a vote. His home-state senator, GOP Sen. Tom Coburn (Okla.), recommended him for the post.

* On Feb. 13, the Senate confirmed William Kayatta for the First Circuit from Maine 88 to12 after he waited 300 days.

* Obama nominated Magistrate Judge Patty Shwartz in October 2011 to serve on the Third Circuit: she is slated to have a confirmation vote next week.

Why is this happening? Senate Republicans are giving President Obama and Senate Democrats what JonesDay partner Michael Carvin calls "a taste of their own medicine," by filibustering otherwise non-controversial nominees. Senate Democrats blocked the nomination of attorney Miguel Estrada after Bush nominated him in 2001, questioning his work in the Solicitors General office.

Grassley spokeswoman Beth Levine wrote in an e-mail that the White House is "cherry picking and only cites one part of the process," since Obama's picks are getting quicker Judiciary Committee hearings even though it takes them longer to receive confirmation votes on the floor.

She added that the Senate has confirmed 178 of the President’s nominees, and only rejected two of them.

Still, there's still a long wait to get to the point of an actual up-or-down Senate, and there's no sign that thing will change any time soon.

Juliet Eilperin is The Washington Post's White House bureau chief, covering domestic and foreign policy as well as the culture of 1600 Pennsylvania Avenue. She is the author of two books—one on sharks, and another on Congress, not to be confused with each other—and has worked for the Post since 1998.



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