Not to jump all over the Associated Press (see my last post), but I came across an article yesterday that is bizarre enough to warrant mention. There’s nothing inherently wrong with the piece, by Jesse J. Holland, about President Obama’s record of nominating female and minority judges to the federal courts. Indeed, the Times ran a nearly identical article last month, noting that “his administration has placed a higher percentage of ethnic minorities among his nominees into federal judgeships than any other president.” But the title of the Times article — “For Obama, a Record on Diversity but Delays on Judicial Confirmations” — hints at the major issue that the AP overlooks: It does little good to nominate women or minorities when the real problem is getting nominees — any nominees, even stereotypical WASP-y male nominees — confirmed. As I read Holland’s article for the AP, I kept waiting for this important point to be made. Obama’s difficulty in filling judicial vacancies is a caveat to the praise heaped on Obama by the political scientists Holland interviews. More importantly, however, it provides much-needed context to the argument that Obama has made, in the words of one poli-sci professor, “an absolutely remarkable diversity achievement.”
The molasses-like pace at which Obama has nominated federal judges has been an issue since at least 2009, when the Times published an op-ed by Jonathan Bernstein, who deemed the situation a “vacancy crisis.” Republican obstructionism goes a long way in explaining the vacancies, as it takes only one senator to block a nominee whom the GOP finds too liberal, but Bernstein also blames Democrats for not pushing had enough to confirm judges he regards as clearly mainstream. While it is true that the administration was occupied in its first year with filling two seats on the Supreme Court, Obama lags behind both his most recent predecessors in confirming lower-court judges. The AP itself offers statistics: Ninety-eight of Obama’s nominees have been confirmed, compared with 322 during Bush’s presidency and 372 during Clinton’s. At this rate, only 196 of Obama’s judicial picks will have been confirmed by the end of his (hypothetical) two terms. Even that projection may be optimistic, however, because, as Bernstein observed in the Washington Post this August, “it’s far more common for nominations to be held up during the final year of a presidential term.” Linda Greenhouse, a legal blogger for the Times, offers a detailed breakdown of the numbers. She writes:
As of this month [April], President Obama is 33 judicial nominations behind where President George W. Bush was at the comparable point in his presidency, and 41 nominations behind President Bill Clinton.
The stamp that a president leaves on the judiciary is one of his most significant legacies. Presidents pay lip service to the idea of nominating the people “most qualified” for the job, but the truth is that an executive’s nominees reflect his own political philosophy. Conservatives favor originalists like Clarence Thomas and Antonin Scalia who try to divine what Thomas Jefferson would have thought about abortion and gun control. Liberals opt for judges more amenable to reading the Constitution as a so-called living document, who have the “sense of compassion” that Obama cited at his nomination of Sonia Sotomayor as “a necessary ingredient in the kind of justice we need on the Supreme Court.” In ruling on the constitutionality of the individual mandate that is a center of Obama’s health care reform, all the district judges who upheld the mandate were appointed by Democrats; all those who struck it down were appointed by Republicans. Though the decisions at the appellate level have not followed this pattern to the letter, judges who cross ideological lines tend to be the exceptions that prove the rule.
Because the makeup of the federal courts is so critical to the direction of the country, I am surprised that the Associated Press neglects to mention how few judges Obama has actually installed. It’s wonderful that Obama “is moving at a historic pace to try to diversify the nation’s federal judiciary,” but unfortunately the pace at which he is filling vacancies is also historic: historically slow. Greenhouse writes that, as of April 20, “92 vacancies . . . now exist on the federal district courts and courts of appeals (up from 54 vacancies when President Obama took office, or from six percent to more than 10 percent of the 857 authorized judgeships).”
A reporter who trumpets Obama’s record of diversity without providing the context needed to understand that record is simply acting as a PR flak for the White House. The administration, Holland writes in his article, that “recently has been touting its efforts to diversify the federal bench during Obama’s tenure.” The White House is blowing its own horn. It doesn’t need the Associated Press to help out.
. . . So Well Read. . . 