This senatorial entropy has taken an enormous toll on President Obama’s judicial appointments. This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance. (Its judges—like John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg—also often wind up on the Supreme Court.) The D.C. Circuit now has four vacancies out of eleven seats.
During the last Bush Administration, Republican Senators grew so frustrated with what they called Democratic obstruction of judicial nominees that they threatened to change Senate rules to limit filibusters on judges. In 2005, the bipartisan “Gang of Fourteen” Senators announced a truce. Democrats agreed to allow votes on Bush’s nominees in “all but extraordinary circumstances,” and they kept to the deal. Bush’s second-term appointees (including two to the Supreme Court) proceeded without obstruction. At least technically, the Gang of Fourteen compromise is still in effect. But Republicans have essentially ignored it—as the Halligan filibuster demonstrated.
Halligan is impeccably qualified to be a judge—she’s a career government lawyer from New York—and she enjoyed broad support among members of both parties in the legal community. Opposition to her focused almost completely on a single brief she wrote for her boss, then-New York Attorney General Andrew Cuomo. Cuomo had sought to make gun manufacturers legally responsible for some of the violence in New York, a position that the National Rifle Association opposed. The N.R.A. punished Halligan for doing her job for New York, and the Senate Republicans followed.
“I don’t think any reasonable person would find anything about Caitlin Halligan that would constitute ‘extraordinary circumstances,’” Kathryn Ruemmler, the White House counsel, told me. “The idea that a position that you took as a public official on behalf of your client amounts to an extraordinary circumstance was pretty astonishing.”
Judicial appointments represent one of the great missed opportunities of the Obama Presidency. In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush’s nominees got votes within weeks; Obama’s take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. “The Republican Senators are not punished for it, and they are rewarded by their base,” a senior administration official said.
What, if anything, can Obama do? Given the rules of the Senate, probably not much. (Earlier this year, Senate Democrats backed away from imposing limits on filibusters.) Because the Senate schedule operates by unanimous consent, Republicans must agree to take votes on judicial nominees, and they have been slow and stingy in doing so, even when they have no plans to filibuster or even to vote no. For example, eighteen district court nominees, all uncontroversial, are currently awaiting votes on the floor. All will be confirmed eventually, but Mitch McConnell, the Senate Minority Leader, parcels out agreements to take votes just one or two judges at a time. “We are not hearing any opposition to the district court nominees,” Ruemmler said. “The process is just too slow.”
Obama himself, a former teacher of constitutional law, has said little about judicial nominees during his Presidency. (Given the way Republicans feel about him, Obama might just inflame the issue further if he spoke out.) So Ruemmler and the small group of people committed to the issue in the Administration will continue their strategy of filling the pipeline with nominees and hoping for votes. In the new few weeks, Sri Srinivasan, a deputy solicitor general, will have his Senate Judiciary Committee hearing for his nomination to the D.C. Circuit. Harry Reid, the Senate Majority Leader, will soon attempt to get a vote for Patty Shwartz, a nominee for the Third Circuit. It’s still early in Obama’s second term, but, given the pace at which judicial nominations proceed, it’s actually already pretty late.
Original Article
Source: newyorker.com
Author: Jeffrey Toobin
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