The last couple of days I've been writing on the politics of Goodwin Liu's nomination to the federal bench over at Greg's place, which just failed in the face of a Republican filibuster. The reasons for blocking him are two-fold: As a young, smart and unabashedly liberal lawyer he's a likely candidate for future vacancies on the Supreme Court, and Republicans see defeating his nomination as payback for Democrats blocking Miguel Estrada and Liu's own harsh remarks about Justice Samuel Alito.
So now that Liu's nomination failed before the Senate, at the hands of Republicans who once argued filibusters of judicial nominees were unconstitutional, what are the options? For starters, Obama could make him a recess appointment. Although recess judicial appointments have waned in recent years, George W. Bush made two such appointments during his administration, William H. Pryor and Charles W. Pickering. According to the Congressional Research Service, Bush cited the fact that these were necessary because of "unprecedented obstruction" in the Senate and the fact that the appointments would address judicial emergencies.
The same thing can be said of the situation on the Ninth Circuit, to which Liu was nominated. And if the circumstances during Bush's term represented "unprecedented obstruction," the circumstances today are far worse. Take a look at this chart* from the Alliance for Justice showing how few of Obama's nominations have been confirmed in comparison to prior presidents:
A recess appointment would certainly be controversial given Republicans' animosity towards Liu. But by their own standards, it would be justified--Pickering and Pryor were also filibustered. It would however, represent a much more aggressive approach to filling vacancies on the federal bench than the Obama administration has displayed so far.
*I initially posted the wrong chart.
