The Courts: How Obama Dropped the Ball

(AP Photo/J. David Ake)

In his novel King of the Jews, Leslie Epstein sets his story in the wartime ghetto of Lodz, Poland, where the Gestapo ruled through an appointed council of Jewish elders. Epstein, researching the book, tracked down the gallows humor of the time. In one such joke, told by a character in the novel, two Jews are facing a firing squad. The commandant asks if they would like blindfolds.  One of the condemned whispers to the other, “Don’t make trouble.”

“Don’t make trouble” could have been the credo of the first year of the Obama Administration. The White House calculated that if the president just extended the hand of conciliation to the Republicans, the opposition would reciprocate and together they would change the tone in Washington. This was the policy on everything from the stimulus to health reform to judicial nominations. It didn’t work out so well.

Now, spurred by the tailwind of a re-election victory and the realization that public opinion is on his side, President Obama has displayed a new toughness in his budget battle. He has declared that he won’t negotiate against himself, and the strategy is working. But the White House is still stuck in don’t-make-trouble mode on the crucial issue of judicial appointments, where the pace of nominations is only now catching up with that of Obama’s predecessors and the strategy for avoiding partisan confrontation gives Republicans something close to a veto over who is nominated.

The slow pace of nominations combined with Republican obstruction to create a huge backlog. There are now more than 100 vacancies on the federal bench, out of some 856 federal district and appellate judges, far more than on the day Obama took office. The flagship Court of Appeals for the DC Circuit has 3 vacancies out of 11 judges, leaving that court with a Republican majority. During Obama’s first term, total judicial vacancies increased by 51 percent. During the first terms of Clinton and Bush, they declined by 65 and 34 percent respectively.

As a result of this snail’s pace, the federal courts are only a shade less rightwing than when Obama became president in 2009. Since the end of the Bush presidency, the percentage of Republican-appointed appellate judges has declined only from 61.3 to 51.8 percent, while the share of Republican-appointed district court judges has hardly dropped, from 58.6 % to 53.6 percent, according to a study by the Alliance for Justice.

Senate Republicans have resorted to unprecedented use of filibusters and threats of filibusters to keep the courts as Republican as possible for as long as possible. Even on district court judges, posts that used to be easily confirmed, Republicans have used filibusters 20 times. Obama’s total confirmation rate is 75 percent, compared to 88 percent for Bush four years into his presidency. A senior White House official says, “It doesn’t matter how many more judges we jam into the pipeline, the vacancy rate doesn’t change at all. The bottleneck is the Senate. More names only add to the bottleneck.”

But this view misses the interaction between Obama’s behavior and the Senate’s. The slow pace and resulting backlog served to embolden Republicans. The pile-up weakened the Administration’s hand, creating pressures to expedite confirmations by sending up bland candidates. By failing to make appointments at an adequate pace, and then backing off when he encountered resistance, Obama helped enable the Republican obstruction. Should the pattern persist, the courts will become only glacially less right wing.

Why this morass on such a crucial matter? The story has several distinct elements, which reinforce each other. They include the president’s own philosophy of judicial restraint; the general strategy in Obama’s first term of appeasing Republicans in the hope of compromise; the disengagement of the White House political staff from the judicial appointment process; the focus in the early months on the stimulus and on health reform, leaving judgeships as a third-tier issue; dysfunction both at the office of White House Counsel and the Justice department compounded by a turf rivalry between the two; the emphasis in 2009 and 2010 on two Supreme Court nominations to the exclusion of lower-court appointments; the fact that Majority Leader Harry Reid was loathe to sacrifice precious floor time to court nominations likely to be filibustered; the loss in 2009 of former Judiciary Chair Ted Kennedy, a resolute progressive and master tactician; and the deferential practices of the current chair, Pat Leahy of Vermont.

But the common element was that nobody—not the White House chief of staff, not the Senate leadership, not the president himself--made judicial nominations a priority. So nearly four years into a Democratic presidency, the federal bench is almost as conservative as it was at the start of Obama’s term. This was a train-wreck of the first order, with consequences that will reverberate for decades.

Geoffrey Stone, the former dean of the University of Chicago Law School who invited Obama to teach there and who was a close colleague, says. “Even if the President is content to appoint moderate judges, it remains a mystery why the Administration is so far behind in its nomination of judges. Had Obama lost in 2012, this would have been a disaster in terms of missed opportunities. As we move forward, it is essential that the Administration get its act together. There is no excuse for the persistent failure to fill vacancies.”

While the Roberts Supreme Court gets most of the attention, in a typical year, the appellate courts review tens of thousands of cases, while the Supreme Court decides fewer than 100. Many key cases decided by courts of appeal either become the law of the land, or heavily influence how the Supreme Court decides a question. When a majority of district court and appeals court judges are conservatives and resolute liberal jurists are mostly absent, the entire dialogue shifts to the right. The Court of Appeals for the Fourth Circuit, for example, held that “enemy combatants” could be jailed indefinitely without charge, undermined the right of criminal defendants to counsel, upheld Virginia’s mandatory parental notification law on abortions, overturned key portions of the Violence Against Woman Act and the Clean Water Act, denied Civil Rights Act remedies to workers subjected to racial epithets, and ruled that nicotine could not be regulated by the FDA as a drug.

The appellate courts also function as feeders to the Supreme Court. Current justices who have served on the DC Circuit include Justices Roberts, Scalia, Thomas and Ginsburg. Former chief justices Warren Burger and Fred Vinson came from the DC Circuit as well.

“The President’s legacy is at risk,” says William Yeomans, staff director of the Senate Judiciary Committee under Kennedy. “He can achieve all the political change he wants, but it’s all in jeopardy if conservative judges overturn it.”


The Politician and the Professor


When Barack Obama took office in January 2009, the federal courts had been made over by the two-term Bush Administration. Bush had appointed fully 40 percent of all sitting judges. Bush’s success was no accident. His top political adviser, Karl Rove, orchestrated the process, working with the Justice Department, the White House Office of Legal Counsel and outside legal groups, to identify a pool of ultra- conservative judicial candidates. The Bush effort was staffed by a large task force, with one team leader for each of the 13 federal judicial districts, working in close concert with the array of right wing groups. Closely involved as strategic advisers were the so called “four hoursemen”: Jay Sekulow of the American Center for Law and Justice, Leonard Leo of the Federalist Society, C. Boyden Gray, former White House Counsel to President H.W. Bush and former head of the Committee for Justice, and Ronald Reagan’s attorney general, Ed Meese. The traditional vetting by the American Bar Association was re-delegated to the rightwing Federalist Society.

The strategy was to appoint movement conservatives, and to flood the zone. If a few were blocked, the Senate couldn’t block them all, and lots of conservatives would eventually be named. Despite complaints of Democratic blockage of a few far-right appellate nominees, over 95 percent of Bush’s nominees were eventually confirmed.

Bush and Rove were quick off the mark. On May 9, 2001, Bush introduced his first 11 nominees to appellate courts at a public event in the White House East Room. He was sending a signal to his conservative base and throwing down a gauntlet to Senate Democrats. His nominees included John Roberts to the D.C. Circuit and several other movement conservatives including Jesse Helms’ aide Terrence Boyle, Justice Antonin Scalia’s former clerk Jeffrey Sutton, and Miguel Estrada, a law partner of Solicitor General Ted Olson. Nine of the eleven were ultimately confirmed--all except Estrada and Boyle. There was one small peace offering to Democrats—among the 11 was Roger Gregory, a leftover recess appointment of Bill Clinton’s and the first African American to serve on the Fourth Circuit, which covers southeastern states with sizeable black populations. 

In the Bush era, the Rove team not only got hard-core conservatives appointed; the White House and the Senate Republicans fought to get them confirmed. When Democrats managed to block a few Bush appellate nominees, Republicans after gaining senate seats in the 2004 election threatened a “nuclear option” of abolishing the filibuster. After tortuous negotiations by a bipartisan “gang of fourteen,” the right relented on condition that Democrats agree to cloture for three of the most controversial Bush nominees, Janice Rogers Brown, William Pryor, and Priscilla Owen, and not to filibuster judicial appointees except in extraordinary circumstances. After Obama succeeded Bush, Republicans abandoned the deal, freely resorting to filibusters and using other maneuvers to delay floor action.

Barack Obama had an entirely different view, both of the courts and of the politics. He found the Bush process distasteful. In his administration, there would be no ideological agenda for rebalancing the courts, no litmus for nominees, no pipeline from progressive groups, nor even a coherent political strategy for expediting nominations or making it politically costly for Republicans to block them. There was no hands-on involvement of chief political adviser David Axelrod or his political team, and no sense of high priority. Where Bush and Rove battled for their appointees, the Obama administration, except in their two Supreme Court appointments, left nominees to fend for themselves.

Philosophically, Obama’s view was akin to that of the great jurist Felix Frankfurter. Justice Frankfurter was a substantive liberal, but a judicial conservative. He believed that courts should play a very limited view in making policy. Obama, echoing Frankfurter, had written in The Audacity of Hope, “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”

That view of the judiciary might comport well with Obama’s own policy goals as a moderate liberal—if this were a time when courts generally deferred to legislatures. But the radical conservatives of the Roberts Court, though they pay lip service to respecting precedent and the “original intent” of the framers (as they reinterpreted  it), are as activist a group of judges as ever has sat on the Supreme Court. By not making judicial appointments (much less of liberals) a White House priority, Obama has reinforced a radically rightwing status quo that is the opposite of his own stated judicial philosophy and that puts his substantive legacy at risk.


Walking and Chewing Gum


During the 2008 campaign, Obama landed a very nice punch when the faltering Republican candidate, John McCain, tried to cancel a presidential debate using the alibi that more urgent work needed to be done on bank bailout legislation. Obama tartly replied, “It is going to be part of the president’s job to deal with more than one thing at once.” The debate went on as scheduled. But when it comes to getting other pressing business done while still finding time to identify and nominate candidates for the federal bench, the Obama White House has had trouble doing multiple things at once.

"In the first year,” says Caroline Fredrickson, the former Daschle senior aide who now directs the American Constitution Society, “the White House operated is if judicial nominations and other legislation were a trade-off. If they were tough on judges, it would cost them Republican cooperation on other issues. But that was a political misjudgment. The deals that are struck on judges and on legislative bargaining operate on entirely separate tracks."

In the spring of 2009, when leaders of liberal advocacy groups met with top White House aides to inquire how they could help, they were told that the president had more pressing things on his mind and not to polarize the politics. The White House stance was the complete opposite of the way Rove and Bush used their conservative base. A participant at a key April meeting told me, “Jim Messina said to us, We’ll take care of it, you shut up and go away. We came out of it stunned.  One White House person called me up and apologized.” 

Obama’s own relative disinterest in judicial appointments was compounded by multiple dysfunctions on the White House staff. Usually, the White House counsel is the senior staff person for court appointments, with detailed work done by his or her deputies and associates, backed up by the Justice Department. Obama’s first counsel was Greg Craig, a liberal who had worked for Ted Kennedy, and whose particular interest was international human rights. Obama had pledged to close the prison at Guantanamo and reform the ad hoc process of using military tribunals to try prisoners incarcerated as enemy aliens. Craig tried to carry out what he took to be the president’s policy.

Chief of Staff Rahm Emanuel viewed these efforts as a distraction that would only rile Republicans and impede other legislative priorities. Obama had asked Craig to hire as his deputy Cassandra Butts, the president’s friend and law school classmate. Working under Butts and doing much of the detailed work of assembling possible nominees was Susan Davies, a former counsel to Pat Leahy.

Craig and Davies did not get along well with Butts. Emanuel, meanwhile, kept undercutting Craig, leaking reports of his imminent departure. By November, both Butts and Craig were gone. Judicial appointments suffered from all the infighting. Adding to slow start was the fact that the Justice Department Office of Legal Policy did not get an assistant attorney general until April 2010. Unlike some previous attorneys general, such as Ed Meese under Ronald Reagan, Obama’s Attorney General, Eric Holder, has had no particular interest in judges.

In December 2009, Bob Bauer succeeded Greg Craig as White House counsel. Bauer was more attuned to the importance of judicial appointments. But his passion was campaign finance reform, which would soon be destroyed by the Roberts Court in Citizens United (another resounding demonstration of the importance of courts.) The day-to-day job of identifying possible judges fell to associate counsel Susan Davies, later promoted to Bauer’s deputy. She was respected, competent but overworked, and two levels too low in the White House hierarchy to have enough influence to break the logjam.

In the meantime, Justice David Souter had announced his retirement at the end of the June 2009 term, and White House attention turned to finding a successor and getting her confirmed. That nominee turned out to be Sonia Sotomayor. After an extensive hazing by Republicans, Sotomayor was confirmed in August by a vote of 68 to 31, but lower court appointments languished. “The Sotomayor fight sucked out what was left of the oxygen,” said one close observer.


Conciliation Spurned


For much of his first term, Obama’s strategy on judges reflected the same conciliation that marked his legislative efforts. If the Republicans would not confirm liberals, appoint moderates. Appoint nobody who took a stand that might be a lightening rod for opposition. Appoint prosecutors, corporate lawyers and other conservative Democrats, rather than academics with a trail of articles that might be targets, or lawyers with a public interest background.

But in this as in so many other areas, a conciliatory posture only confirmed and reinforced the Republican strategy of obstruction. The White House even pre-cleared possible nominees with both home-state Republican senators and senior Republicans on the Senate Judiciary Committee, a practice that continues to this day. If key senators raised red flags, the tendency was to find another nominee rather than fight. Bush and Rove did nothing of the sort.

An early indication that appeasement wouldn’t work was the Republican treatment of Obama’s first high-profile appellate nominee.  On March 17, 2009, Obama nominated David Hamilton to the Seventh Circuit Court of Appeals. Hamilton, the chief judge of the district court in Indianapolis, got along well with Republican senator Richard Lugar. He was the nephew of Congressman Lee Hamilton, a Democrat well liked by Republicans. By all indications, he was a judicial moderate. But he also was something of a civil libertarian. Republicans soon discovered that Hamilton had voted to disallow the daily invocation used by the Indiana legislature because of its multiple references to Jesus Christ, and to overturn an Indiana anti-choice law that required women considering abortions to first have two visits to a doctor. Republicans then opposed Hamilton on a straight-line party vote, and filibustered his nomination. He was ultimately confirmed in November by a vote of 59-39 after a filibuster was broken. The clear signal was that the Republicans would cut Obama nominees no slack.

Obama, rather than fighting fire with fire, concluded that he needed less controversial nominees. Even that strategy, paradoxically, slowed things down. It required relatively junior White House staff to look hard for nominees who would not be vetoed by higher-ups; the tactic also invited prolonged pre-negotiation with Republicans. By the end his first year, with more than 100 vacancies on federal district and appellate courts, Obama had managed to nominate just 43 new federal judges. By the same point in his presidency, George W. Bush had nominated 89.

Groups such as the Leadership Conference on Civil and Human Rights, People for the American Way, the Alliance for Justice, the American Constitution Society, and major unions expressed increasing alarm. On February 24, 2010, a group of distinguished law professors and deans wrote a private letter of concern to the president. The group included the former Chicago law dean Geoffrey Stone, Lee Bollinger, president of Columbia University, Kathleen Sullivan, former dean of the Stanford Law School, Ronald Dworkin of NYU, and other eminent law professors including (American Prospect contributors) Randall Kennedy and Bruce Ackerman.

Their letter urged the president to make judicial nominations a top priority, noting that the lower federal courts: “make thousands of decisions each year on issues as wide-ranging as freedom from discrimination, due process, religious and expressive liberty, crime and punishment, the environment, immigration, workplace safety, privacy, and access to the political process….We therefore urge you to redouble your effort to appoint exceptional judges possessed of keen intellect, fierce independence, bold judicial leadership, and deep respect for the rule of law and the most basic values of our Constitution.”

The White House response, according to one of the signers, was pro forma: thank you very much, we’ll get back to you. The group then leaked the letter to the Washington Post, which had the effect of terminating future White House contact with several of the professors.


The Diversity Paradox


By one measure, Obama excelled. He appointed record numbers of minorities and women, far exceeding even Bill Clinton’s fine record. Fully 44 percent of his nominees have been women and 37 percent people of color. Six have been gay or lesbian. What he did not do was to appoint very many liberals.

Obama’s stellar record on diversity has at times split the liberal coalition. Many core members of the Leadership Conference on Civil and Human Rights, for instance, were dismayed by Obama’s nomination of Sri Srinivasan to the DC Circuit Court of Appeals, but Asian-American groups were passionately in support, so the Conference as a broad coalition is expected to remain neutral.

Srinivasan, a native of India and brilliant Stanford Law graduate, had clerked for the conservative 4th Circuit Court Judge J. Harvie Wilkinson III, and then for moderate Supreme Court Justice Sandra Day O’Connor. He worked in the Solicitor General’s office under George W. Bush, and then went into private practice at the power-law firm of O’Melveny and Myers, where one of his specialties was defending multinational corporations against accusations of violating international human rights. He also defended Enron executive Jeff Skilling in his appeal to the Supreme Court, challenging the fraud statute under which Skilling was convicted. The White House floated Srinivasan’s name early in Obama’s term, but ran into major liberal pushback, and brought him back from private practice to be deputy solicitor general. One person close to the process called the move “a cleansing operation.” Obama then appointed Srinivasan to the D.C. Circuit in June, 2012. The Senate has yet to act on the nomination.

The Administration has sometimes resorted to package deals, where Obama names one moderate and one relative conservative, the home state senators sign off, and the nominations go through. For example, in November 2009, after extensive negotiation and pre-clearance, Obama nominated James Wynn, a moderate liberal, and Albert Diaz, a moderate conservative to the Fourth Circuit. Both were supported by North Carolina’s two Senators, Kay Hagan, a Democrat, and Richard Burr, a Republican. Diaz was a nominal Democrat, but several of his opinions as a state judge on both criminal justice and rights issues had dismayed civil rights groups. But as the first Hispanic appointee to the Fourth Circuit, he did not get any public opposition from liberals, and Republicans joined Democrats in confirming him by voice vote.


We Nominated a Liberal and He Didn’t Work Out


Half a century ago, when white executives were resisting the pressure to recruit and hire people who were condescendingly referred to as “qualified Negroes,” an oft-heard excuse was “We hired a Negro once and he didn’t work out,” or words to that effect. Obama seems to harbor similar views of liberal jurists. In March 2010, perhaps in response to the pleas of advocacy groups and liberal law professors, Obama nominated a brilliant and resolute liberal, Goodwin Liu, an American of Taiwanese descent. Liu had clerked for both Justice Ruth Bader Ginsburg, for whom he helped draft her dissent in Bush v. Gore, and for the liberal giant, DC Circuit Judge David Tatel. He’d worked at the Education Department and at AmeriCorps. He had also been board chair of the American Constitution Society, the group that was set up as a counterweight to the conservative Federalist Society.

Liu had been outspoken in his views. In opposing Judge Samuel Alito’s nomination to the Supreme Court, Liu said, "Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance, where a black man may be sentenced to death by an all-white jury for killing a white man….” He had also been frank in his criticism of Chief Justice Roberts.

Republicans accused Liu of failing to disclose all of his controversial statements and demanded that he produce texts of 117 supplemental writings and speeches. They then repeatedly delayed consideration of his appointment, which expired at the end of the 111th Congress in December 2010. Obama re-nominated Liu in January 2011. Republicans continued to obstruct. Advocacy groups asked the White House how they could help, and were told to stay away. Liu essentially had to run his own campaign. After the Senate voted to reject cloture in mid-May, Liu, after 15 months of being in limbo, withdrew on May 25, 2011, citing the need to get on with his life. There was almost a passive-aggressive quality to the White House treatment of Liu, as if to admonish the advocacy groups: see what happens when we nominate a liberal. “They just let him hang there,” said one frustrated activist.

After the Republicans’ destruction of Liu, Obama and his staff grew even more gun-shy about nominating liberals. Other nominees, even those who eventually won confirmation, have complained that the White House left them on their own as the process dragged on in some cases for two years or more.

In July, California Governor Jerry Brown appointed Liu to that state’s Supreme Court. On August 30, the state bar commission gave Liu a "unanimously well qualified" rating, describing him as "brilliant, impartial, and with a work ethic second to none ... [h]e has an unwavering commitment to equal access to justice and will treat all litigants fairly, without regard to wealth or position in society."


Blue Slip Blues


One of the archaic forms of Senatorial courtesy routinely abused by today’s Republicans is the long-standing custom of allowing the home state senators of a nominee to weigh in on a judicial appointment. The Judiciary Committee gives the two relevant senators a blue slip, which they are expected to return with favorable or unfavorable comments. Until the current era of vicious polarization, this courtesy more or less worked.

The use of blue slips has varied over the years. When Ted Kennedy became Judiciary Chairman in 1979, he did not permit a single senator sitting on a blue slip to block Committee action. During the Clinton administration, then Judiciary Chairman Orrin Hatch altered the rule to allow one withheld blue slip was to kill a nomination. After Bush’s election in 2000, Hatch as chairman changed his position. Both home state senators would have to fail to return their slips to delay consideration.

The practice of the current Chair, Pat Leahy, is a strict construction of the blue slip practice—no hearing until the slips from both senators are returned. Leahy, an old-fashioned and courtly senator, has prided himself on modeling courteous behavior. When he was chairman in 2001-02, Leahy moved 100 Bush nominees in 17 months, wanting to set an example of bipartisan cooperation. Leahy’s view is that if he did not honor the blue slip policy, it would eat up committee and floor time and Republicans would just find other ways to block.

But in today’s poisoned atmosphere, the use of blue slips gives the Republicans three separate opportunities to obstruct. One or both home state senators can advise the White House that a proposed nominee will not get a blue slip. The Obama White House then typically comes up with a more moderate appointee. But after Republican senators have agreed to accept a nominee, they sometimes decide not to return the blue slip, as has been the case with about ten Obama nominees. And even after blue slips are returned, the Republican leadership sometimes decides to filibuster.

Leahy’s courtesy interacts with both the need of Senate Majority Leader Harry Reid to conserve floor time and the risk aversion of President Obama. Reid is capable of playing partisan hardball, but not when the White House is AWOL. “Reid has other legislative priorities,” says Yeomans, “but partly that’s because judges are not a White House priority. If the President had said, ‘Look, Harry, we need to confirm judges,’ he’d make available some floor time.” These serial weaknesses on the Democratic side play into the hands of Republican obstructionism.


A Learning Curve?


This piece has described the “how” of judicial nominations getting bogged down at the White House and further slowed in the Senate. The continuing puzzle that bewilders advocacy groups, law professors, and other federal judges is the “why.”

Why has President Obama been so lethargic in naming federal judges and so content to let far-right domination of the courts continue? Obama, after all, is the only president to have taught constitutional law and been president of the Harvard Law Review.

Obama surely appreciates the importance of the courts. In his 2011 State of the Union Address, just days after the High Court ruled in Citizens United, Obama took the opportunity to dress down the assembled justices personally. “With all due deference to separation of powers,” he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limits in our elections. I don’t think America’s elections should be bankrolled by America’s most powerful interests, or, worse by foreign entities. They should be decided by the American people.”

Note, however, the double-edged nature of the comment. It was a criticism of a particular ruling but also a characteristic Obama plea for judges not to overrule democratic decisions. Yet Obama’s view that great issues should be decided via legislation, not courts, has combined with his hands-off presidency to make judicial appointments a low personal priority. So the courts that Obama gets are the opposite of the ones he wants. 

Obama does intermittently get involved and impassioned, as he has on the budget battle. But this president is also prone to bouts of laconic disengagement, as he demonstrated by his performance in the first debate with Mitt Romney and his passive delegation to staff of major decisions such as the contents of the stimulus bill. Obama’s philosophy mixes with his character in ways that sometimes subvert his values.

Geoffrey Stone, the former dean who invited Obama to teach constitutional law, observes, “The president went to law school in the era of [chief justices] Burger and Rehnquist. Like many other progressives of his generation, he does not seem to have a romantic view of what courts can do, the view of liberals who grew up in the era of the Warren court. He seems to think it’s enough if courts are moderate. But the Supreme Court today is extreme in its conservative ideology, and it's important that all the federal courts have judges who can defend and justify the opposing [liberal] position. It's not enough for them just to be less conservative than judges like Scalia, Thomas and Alito. The President is missing a critical opportunity to address this dilemma.”

Will Obama’s new toughness on budget issues carry over into his actions on judges? Most of the people I’ve interviewed for this story say they’ve seen only the beginning of progress. Today, with over 100 vacancies, according to a tabulation by the American Constitution Society, there are 30 judgeships for which the White House has yet to propose a nominee, including three in the northern district of Illinois—the president’s own hometown of Chicago. In terms of sheer numbers, Obama has lately appointed judges at a somewhat faster clip than in his first two years, but the trade-off is fewer liberals.

The Justice Department is now involved, and sheer understaffing is less of a problem. There is at last a process for receiving suggestions from advocacy groups. After lagging far behind Bush and Clinton for his first three years, Obama has now sent the Senate a total of 212 nominations, compared to 225 for Bush and 237 for Clinton at a similar point. Obama is still well behind Bush in appointment of appellate nominees, 51 to 42. But improved nominations are only part of the story, for the slow start leaves a huge backlog of pending appointments, vacancies, and opportunities for Republican mischief. Obama and the Senate now have to get these people confirmed.

“The administration needs an all-hands-on-deck approach this term,” says Nan Aron, executive director of the Alliance for Justice, “including a more active role by the Justice Department, a task force in the White House dedicated to finding and confirming nominees for every vacancy, and, most importantly, a more assertive personal role for the President himself.”

Time is short. In the sixth year of a presidential term, the president’s party almost always loses Senate seats. In 2014, nine or ten Democrats up for re-election are considered vulnerable—and no Republicans. Obama needs more judges seated in 2013, before we are in another election year.

No one can elevate this imperative other than the president. Yet there is little evidence that he has decided to invest serious political capital in getting judges confirmed. This lapse has already done damage to the promise of his presidency, and to the complexion of the federal judiciary for decades to come. It is one more dimension of the enigma that is Barack Obama.

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