The PJ Tatler

What Judicial Obstructionism? Obama's Nominees Are Faring Better Than Bush

President Obama is playing hardball. He vows no compromise with his judicial appointments to the D.C. Circuit Court of Appeals, and  this has some on the left, like Slate editor Emily Bazelon, excited.  After all, Obama isn’t a fighter. He’s a reformer, or at least, that’s what his platform was in 2008.  At that time, the fighter was Hillary.  Yet, is this a ‘squirrel’ moment?  Obama has a few scandals that are engulfing his presidency, and this “in your face” move with the judiciary just could be something new for the lapdog press to write about, instead of the corrupt and illegal practices of the IRS.  Additionally, the fighter label wears off when you discover that Obama’s nominees are faring better than his predecessors.  Also, the D.C. Court of Appeals is probably, as Ed Whelan noted, “one of the most underworked courts in the country.”

Concerning nominees, David Grant of the Christian Science Monitor wrote on June 4 that:

By some measures, President George W. Bush’s judicial nominees got rougher treatment than have Obama’s, according to the Congressional Research Service. The report found that 82 percent of Obama’s first-term circuit court nominees were confirmed, versus 76.9 percent of Mr. Bush’s. Both Obama and Bush had a lower percentage of nominees confirmed than Ronald Reagan, George H. W. Bush, or Bill Clinton.

Obama’s 80.5 percent approval rate for all his first-term judicial nominees to district and circuit courts is better than the approval rate for George H.W. Bush’s nominees (77.4 percent) and not far behind the rate for Mr. Clinton’s nominees (83.7 percent), according to the Congressional Research Service.

Yet, on the other hand:

Obama’s judicial nominees waited an average of 228 days between their nomination and confirmation through May of this year, according to an analysis by the American Constitutional Society. That’s about 50 percent longer than George W. Bush’s nominees waited.

So, is Obama mad that his nominees can’t get through, or that they wait longer than his predecessor?  Well, they are being confirmed.  That’s the point.  It’s what matters in the end.  Nonetheless, if the president is frustrated over the waiting period, which I’m sure college applicants can empathize with, then he’s just being ridiculous.  Furthermore – and Grant alludes to this in his piece – it’s Senate Democrats who control the legislative calendar.  Then again, the legislative torpor over these nominees shouldn’t be viewed as a life and death situation for how our judicial system works.

Ed Whelan at National Review wrote on May 29 that:

there is no neutral principle that justifies the Obama administration’s sudden rush on the D.C. Circuit. The D.C. Circuit may well be the most underworked court in the country.


If the White House were seriously interested in relieving the judicial workload, it would presumably be giving high priority to the “judicial emergencies” identified by the Administrative Office of the U.S. Courts. The three D.C. Circuit vacancies are not included among the 32 existing judicial emergencies. Further, it’s striking that of those 32 judicial emergencies, the White House has made nominations to only eight of those seats, and four of those eight nominations were made just this month. Of the remaining 24 judicial emergencies for which the White House has made no nomination, vacancies have existed for periods as long as:

3,071 days

2,706 days

1,641 days

1,590 days

1,570 days

1,238 days

1,225 days

939 days

877 days

728 days

688 days

606 days

604 days


One of the D.C. Circuit vacancies has existed for only 95 days. The oldest of the three—for the seat John Roberts vacated to become Chief Justice—is indeed quite old (2,799 days), but the fact that then-Senator Obama and his fellow Senate Democrats blocked President George W. Bush’s nomination of Peter Keisler, an outstanding candidate who won remarkable bipartisan acclaim, amply demonstrates that they perceived no urgent need to fill that seat.

Now, let’s be honest. For the Obama administration, this is an emergency.  The D.C. Court of Appeals has recently taken steps to curtail his agenda, namely, ruling on the unconstitutionality of the president’s NLRB recess appointments.  As a result, Obama needs to get these three in, stack the court, and prevent further road bumps to his initiatives.  Then again, his whole second term could be stalled with these five scandals eating away at what’s left of his political capital.