What Happens if Obama Can't Fill Judicial Vacancies?

The Washington Post’s Al Kamen gives a quick update on the pace of judicial confirmations in the Senate. In short, President Obama shouldn’t expect to fill many more vacancies on the federal bench:

Presidential election years are notoriously bad for nominees. For one thing, the Senate will probably meet fewer days in 2012, as it usually has in presidential election years. And the mood in Congress gets even testier, making what’s become a contentious process that much more partisan.

And during recent presidential election years, confirmation votes for circuit court nominees end in early summer. Last votes for district court nominees were in September or October.

It’s hard to overstate the extent to which next year will feature a complete slowdown in the pace of judicial confirmations. In addition to the partisan pressures of a presidential campaign, it’s simply the case that Republicans have a strategic interest in denying the administration’s judicial nominees, even if they are acceptable to most Republican senators. If President Obama loses his bid for re-election, then the incoming Republican president has the chance to fill additional judicial vacancies, especially if a Republican-led Senate ends the filibuster, or if Democrats choose to follow the usual playbook and cooperate with Republican leaders.

To make a casual prediction, Barack Obama’s legacy as president will have as much to do with the federal bench as much as it will with the Affordable Care Act. For a variety of reasons, Obama has been far less aggressive in filling judicial vacancies than his predecessors. If he wins re-election, this isn’t a huge problem – he has four more years with which to fill the federal judiciary and balance its rightward tilt. But if he loses, we can expect President Romney/Perry to stack the lower courts – and eventually, the Supreme Court – with a variety of conservative ideologues. In other words, because of Obama’s neglect, we stand a good chance of giving conservative ideologues the tools they need to dismantle the welfare state, and leave liberals in a losing battle against right-wing legal theories.

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