One of the biggest criticisms activist liberals have had of the Obama administration is that they have not moved aggressively to put their stamp on the federal judiciary. While there has certainly been Republican obstruction of Obama nominees, in many cases the administration hasn't even bothered to nominate anyone to open seats. There are currently 82 vacancies on the federal bench, and in 58 of those, the administration has offered no nominee.
So it's good news that they have announced that they are about to offer nominations for the three vacancies on the Court of Appeals for the D.C. Circuit, widely considered the second most important court in the nation, since it hears many critical cases involving the scope of government power. It looks like the administration is betting that the more nominations they put up at the same time, the more attention the issue will get if Republicans try to block them, and the more attention it gets, the more difficult Republican filibusters will be to maintain.
If you listen to what Republicans are saying so far, you'll notice they're not making the same argument they have in the past. It used to be that whenever there was an argument about a judge appointed by a Democratic president, the cry of "judicial activist!" would reverberate throughout the land. Every Democratic nominee was supposed to be a crazy leftist who would run roughshod over the Constitution in their effort to turn America into a nightmare of gay-marrying, old people-euthanizing, zygote-murdering affirmative action. But so far anyway, Republicans don't seem to be making an ideological argument at all. Instead, they're saying that Obama is engaged in a nefarious and illegitimate scheme to fill the courts with his preferred judges, by ... well, by naming people to fill vacancies, just like every president before him and just as the Constitution requires. "The whole purpose here is to stack the court," said Mitch McConnell, exposing Obama's sinister intent at last. Chuck Grassley, continuing his transformation from reasonable midwestern moderate into the Louie Gohmert of the Senate, accused Obama of "packing the courts in the hopes of obtaining more favorable rulings."
One might conclude that the reason that (with the exception of Obama's nominees to the Supreme Court) Republicans haven't bothered to say Obama's nominees are extremist liberal judicial activists is because they aren't. One nominee after another seems to have been chosen with winning bipartisan support in mind, and the few that were more strongly progressive, like Goodwin Liu, were offered nothing resembling strong backing from the White House when they ran into GOP opposition (Robert Kuttner gives details on Liu's nomination and the broader issue here).
But that never stopped Republicans before, so why do they seem so hesitant now? Maybe they're genuinely concerned about the reputation they've gotten for obstructing anything and everything the Obama administration does, and with the courts they'd rather do some quiet obstruction rather than make a big deal out of it. Once you start going after individual nominees, the chances of the news media paying attention go up, since reporters need individual protagonists to drive their stories. The Republicans' preferred outcome would be that they can filibuster court nominees without all that much attention being paid, letting the nominations languish in the hopes that by the time we get to 2016 the vacancies will still be there waiting for a Republican president.
But if the Obama administration succeeds in making this a genuine public controversy, they'll have to make substantive arguments for their filibusters. And "Obama is trying to pack the courts!" probably isn't going to cut it.
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