The Judicial Vacancy Blame Game
One in eight seats on the federal judicial bench are vacant. But who is responsible: stonewalling Republicans or a slow White House?
I was surprised by a recent piece in the 0, 771599.story">Los Angeles Times claiming that one in eight seats on the federal judicial bench were still empty, with both parties blaming the other for the vacancies. Coincidentally, I was appearing in a Sacramento federal court house when it was sent to me. The judge there noted his was the busiest jurisdiction in the nation.
Certainly, on district courts there should be no judicial log jam. There are 59 caucusing Democratic senators. The Republican Senators from Maine and assorted others are not known for being obstructionist; surely Harry Reid could get one vote? It is incredible at this high tide for the left that they are not stocking the judiciary at every level with “living constitutionalists” as fast as quorums can be called. Patrick Leahy is a committed partisan and fully capable of running a tight judicial ship. Something is wrong here.
From the article and observations of the Obama administration, I see four main problems. First, President Obama as the article notes, got two Supreme Court justices in his first year and a half. That taxes the judiciary committee. His two nominees each garnered more opposition than any Democratic president since Johnson. So part of the problem is that stocking the Supreme Court meant slowing down on the courts below. Which, were I president would consider a good problem to have.
The next two problems are related. Administration related delay: they are slow to pick judges and then they let the ABA vet them. Democratic presidents like the ABA imprimatur but it does not gain them much. The Democrats in the Senate are likely to vote for the nominee anyway and Republicans have come to distrust the ABA as another once-respected institution transformed into just another liberal pleading outfit. It might help Republican nominees but will do nothing for Democrats. There is no reason Obama, a Harvard trained, University of Chicago law professor, should not have people lined up and ready for appointments.
The final problem is that Barack Obama and his people seem not to recognize problem lawyers when they see them. Goodwin Liu, whom Obama nominated for a spot on the Ninth Circuit Court of Appeals, spent his time attacking good Republican nominees with the usual calumny. He cannot expect an easy pass now. You will note that Justice Kagan, whatever I thought of her nomination, could not be nicer to the conservatives she actually came into contact with. Professor Liu should have taken a memo.
As the ruling attempting to eliminate natural marriage in California demonstrated last month, federal judges are the great engine of the left in our day. The incredibly large majorities created by Obama Hope and the circumstances of 2008 seem set to vanish like a mist in 2010. Kagan and Sotomayor will not vanish; nor would any of the lifetime appointments that sit vacant while Obama and the Democrats dither in their supreme moment. If I were a lefty I would be livid. But I’m not. I congratulate the administration on its deliberate and thoughtful approach to judicial vacancies.