Dana Milbank has a nice column on Paul Oetken pointing out that "The remarkable thing about what happened on the Senate floor Monday night was that it was utterly unremarkable." Oetken is the first openly gay judge to be confirmed to the bench. Eighteen years ago the first openly gay nominee to a Senate-confirmed position, Roberta Achtenberg, faced a filibuster and right-wing smear campaign. Then-Senator Jesse Helms called her a "damned lesbian." Oetken received 80 votes for confirmation. 

What is remarkable though, is the larger context. As Ian Millhiser points out, federal judges are retiring faster than they're being confirmed, and Obama's confirmation rate on judicial nominations is about half that of previous presidents:


Part of the reason Oetken's confirmation is "unremarkable" is that he's not particularly young. As Micah Schwartzman wrote a few months ago, an underappreciated aspect of the judicial confirmations crisis is that Obama's judges are on average, far older than Republican judges. So it's not just that Obama is nominating fewer judges and not fighting particularly hard for the judges he does nominate. It's that he's nominating older judges. To the extent Republicans are successful in perpetuating judicial vacancies, it means that they'll have an even greater opportunity to force the judiciary to the right, not just because there are fewer Democratic appointees but because those judges will retire earlier than their conservative colleagues.

Aside from Liu, none of President Obama's nominees to the federal appellate courts are under 40. Only two are under 45. On average, Obama's nominees are more than 54 years old, which is four years older than the nominees under Presidents Ronald Reagan, George H.W. Bush, and George W. Bush. But the averages tell only part of the story. Consider these statistics: Of the 50 youngest appellate judges nominated since the Reagan administration, 41 were tapped by Republicans. Of the 30 youngest judges, 28 are Republican nominees; and the 18 youngest are all Republican nominees. By contrast, if you take the 50 oldest judges nominated since Reagan, nearly half of them were nominated by Democrats. For decades now, and as a matter of strategy, Republicans have been nominating younger judges. The real question is why Democrats have been doing just the opposite.

What Democrats seem to have missed is that judicial age matters. The list of the 50 youngest appellate judges appointed since the Reagan presidency—all nominated under the age of 45—reads like a Who's Who of most accomplished federal judges of our time: Alex Kozinski (nominated at age 34), Frank Easterbrook (36), J. Harvie Wilkinson (39), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), and Richard Posner (42), to name just a few. That list also includes rising conservative stars appointed by George W. Bush, including Neil Gorsuch (nominated at age 38), Steven Colloton (40), Jennifer Elrod (40), Brett Kavanaugh (41), Raymond Kethledge (41), and Jeffrey Sutton (42). By this point in his first term, President Bush had nominated at least a half dozen judges who were 42 years old or younger. But President Obama has nominated just one: Goodwin Liu.

Oetken? He's 46. Which means that as far as Obama's concerned, he's one of the younger nominees, even though he's older than all the conservative luminaries on the above list.

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