http://www.businessweek.com/news/2013-04-03/obama-pushes-republicans-to-stop-blocking-judicial-picks

Bloomberg News

Obama Pushes Republicans to Stop Blocking Judicial Picks

April 03, 2013

Judge Goodwin Liu

Judge Goodwin Liu was an appellate court nominee considered a potential Barack Obama pick to be the Supreme Court’s first Asian-American justice. Photographer: Chip Somodevilla/Getty Images

President Barack Obama is pressing Republicans to stop obstructing federal judicial nominees, protesting the delays in private conversations with senators and in public declarations by administration officials.

The White House is now focusing on the nomination of Sri Srinivasan for the U.S. Court of Appeals for the District of Columbia, considered the nation’s second-most influential court because it often handles major environmental, labor and national security cases through its jurisdiction over federal rulemaking. Srinivasan’s confirmation hearing is scheduled for April 10.

At luncheon meetings with Senate and House Republicans and at a dinner with a dozen senators last month, Obama pushed against a partisan strategy to block potential future candidates for the Supreme Court earlier in their careers when they are nominated for lower courts, said an administration official, who requested anonymity.

Obama spokesman Jay Carney went to the White House podium this week to complain about “the uniqueness” and “arbitrariness” of the delays Obama’s nominees have faced.

The latest example was Caitlin Halligan, a former New York state solicitor general whose nomination for an appellate judgeship was withdrawn last month amid Republican opposition. She joins Goodwin Liu, an appellate court candidate considered a potential pick by Obama to be the Supreme Court’s first Asian- American justice, who was blocked in the Senate in 2011.

Democrats have used the tactic, too, stopping Miguel Estrada, a George W. Bush appeals court nominee, whom opponents believed Bush might later make the first Hispanic justice.

Reciprocal Filibustering

“You are taking away talent at a much earlier stage,” said Julian Zelizer, a Princeton University history professor, calling it “a reciprocal use of filibustering against the bench of the other party.”

The delays go beyond the judiciary, with similar skirmishes dragging out executive-branch appointments.

Chuck Hagel became the first defense secretary nominee ever filibustered, though backers got enough support to pass the 60- vote threshold needed to overcome the hurdle. CIA Director John Brennan was also the target of a filibuster. Jacob Lew, now Treasury secretary, was flooded with 444 written questions, mostly from Republicans, more than the previous seven Treasury nominees combined.

Still, the judicial arena may offer the starkest illustration of obstructionism: The average wait for confirmation of circuit and district court nominees in Obama’s first term stretched to 227 days, from 176 days in Bush’s first term and 98 days in President Bill Clinton’s first term, according to an analysis by Russell Wheeler, a fellow at the Brookings Institution in Washington.

487 Days

The Senate waited 487 days after Richard Taranto’s nomination before confirming him on March 11 as an appellate judge, though his 91-0 vote signaled no opposition. Obama’s previous nominee for that post, lawyer Edward Dumont, withdrew his name from consideration after waiting more than 18 months.

No nominee has been confirmed since 2006 for the D.C. Circuit, a feeder for the Supreme Court; four of the top court’s nine current justices, including Chief Justice John Roberts, previously sat on the D.C. Circuit.

Halligan had been nominated for one of four vacancies among 11 seats on that circuit court. The White House moved to smooth the way for Srinivasan’s nomination to the same court by releasing a letter of support this week from former officials in the solicitor general’s office including six Republicans, among them Kenneth Starr, who investigated Clinton, and Ted Olson, who was solicitor general under Bush.

Srinivasan, who was born in India, would be the first South Asian federal appeals court judge if confirmed. He was nominated in June 2012.

Chess Game

During Obama’s first term, the number of appeals court vacancies rose to 17 from 14 when he took office in January, 2009, according to Wheeler’s analysis. During Bush’s first term, appeals court vacancies declined to 18 on his second inauguration from 27 when he was first sworn into office.

The conflict over appointments is a game of “multidimensional chess” in which future potential for the Supreme Court is one of many elements in play, said Michael Gerhardt, a University of North Carolina law professor who has advised Senate Democrats on confirmations.

Partisans also are fighting over the judicial balance of power in individual appeals circuits, Gerhardt said. One reason appointments to the D.C. Circuit are so contentious is that Republicans now have an edge of just a single vote on the court, with four justices appointed by Republican presidents and three appointed by Clinton.

Payback Time

There’s also an element of payback at work, Wheeler said.

“Republicans don’t think Bush’s nominees were treated fairly,” Wheeler said. “The Democrats would say that Bush was nominating a fair number of fairly radical people.”

The expanding field of combat is damaging the federal judiciary by discouraging candidates, particularly attorneys who give up taking on new clients during the confirmation process with no certainty of the outcome, Wheeler said.

“If you’re among the best and brightest in the legal profession, why should you subject yourself to a long and drawn- out process of this sort?” he said. “If you’re in private practice, you have a lot to lose.”

Leonard Leo, executive vice president of the Federalist Society, a self-described conservative legal group, said the potential for elevation to the Supreme Court is “probably one element” in Republican senators’ opposition to some appeals court nominees. Still, “no U.S. senator has ever said to me point blank ‘I am going to oppose this nominee because he might be on the Supreme Court,’” said Leo, who was an outside adviser to Bush on judicial nominations.

Democrats, Too

Leo said as far back as Ronald Reagan’s presidency Democrats gave heightened scrutiny at confirmation hearings to appeals court nominees who were likely Supreme Court candidates.

“Going after Supreme Court prospects is nothing new,” he said. “The weaponry that’s brought on the field is what’s changed, and that’s the filibuster, and that goes back to what the Democrats deployed with Estrada and others.”

Nominations to the highest court have regularly stirred controversy since the expansion of civil rights and civil liberties by the Supreme Court under Chief Justice Earl Warren during the 1950s and 1960s.

Democratic President Lyndon Johnson’s 1968 nomination of Abe Fortas to be chief justice was filibustered by a coalition of Republicans and conservative Democrats. Reagan’s 1987 nomination of Robert Bork was rejected by Democrats in a Senate vote.

Lower Courts

The ideological wars started expanding on a large scale to lower courts during the last two decades, said Sheldon Goldman, a University of Massachusetts political science professor and author of “Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan.”

Goldman traces attempts to stymie potential future Supreme Court candidates at a lower level to Clinton’s 1997 nomination of Judge Sonia Sotomayor to the New York-based Second U.S. Circuit Court of Appeals. The Republican-controlled Senate delayed a vote on her nomination for 464 days, though she was originally named to a district court by Republican President George H.W. Bush.

“One of the reasons was they were afraid she would be Supreme Court material,” Goldman said.

First Hispanic

A June 1998 Wall Street Journal editorial urging further delay of her nomination asserted that Clinton intended to “elevate her to the Supreme Court as soon as an opening occurs.” Instead, Obama appointed her in 2009 to be the first Hispanic justice on the high court.

The possibility that Estrada would be the Supreme Court’s first Hispanic member also worked against his 2001 nomination to the District of Columbia Circuit Court of Appeals by George W. Bush. Estrada was the first appeals court nominee to be filibustered, withdrawing from consideration after his backers fell short of the votes needed to cut off debate in 2003.

A memo from an aide to Democratic Senator Richard Durbin of Illinois leaked to the Wall Street Journal said interest groups opposed to Estrada considered him “especially dangerous” in part because “the White House seems to be grooming him for a Supreme Court appointment.”

Obama’s 2010 nomination of Liu to California’s Ninth Circuit Court of Appeals foundered in the face of a Republican filibuster amid speculation he was destined to be the first Asian-American appointed to the top court.

Legal Activists

Liu’s potential as a Supreme Court nominee was “mentioned” in meetings among legal activists who opposed his nomination, said Curt Levey, executive director of the Washington-based Committee for Justice, which usually aligns with Republicans on judicial nominations.

Republicans twice blocked Senate votes on Halligan’s confirmation to the District of Columbia Circuit before Obama withdrew her nomination on March 22. Senate Republicans criticized her work while New York’s solicitor general on a lawsuit by the state against the gun-manufacturing industry.

Halligan, who was nominated in September 2010 for the appeals court, “is certainly someone who could easily be on President Obama’s short list for a Supreme Court nomination,” said Douglas Kendall, president of the Washington-based Constitutional Accountability Center, which usually lines up with Democrats on judicial nominations.

Sending Message

Blocking nominees at the appeals level doesn’t necessarily mean they will be kept off the Supreme Court.

Clinton’s nomination of Elena Kagan in 1999 to the D.C. Circuit Court of Appeals never received a vote in the Senate. That didn’t prevent Obama from nominating her to the Supreme Court in 2010 after she served in his administration as solicitor general.

She was the first justice to go on the court without experience as a sitting judge since then-Assistant Attorney General William Rehnquist and lawyer Lewis Powell were confirmed in 1971.

Gerhardt believes that wasn’t a coincidence. Sending a message that pre-emptive strikes won’t necessarily thwart a nomination to the Supreme Court was “an added incentive” for the choice of Kagan, he said.

To contact the reporter on this story: Mike Dorning in Washington at mdorning@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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