OBAMAS

JUDICIARY at
MIDTERM
by SHELDON GOLDMAN,
ELLIOT SLOTNICK,
and SARA SCHIAVONI

Dennis Brack

THE CONFIRMATION DRAMA CONTINUES

Barack Obamas stunning achievement

W
hen Barack of promoting gender, ethnic, and racial office, for the first time in
Obama assumed American history, women
the presidency diversity on the federal bench, including and ethnic minorities who
on January 20, 2009, he two Supreme Court appointments, together constitute a large
inherited a country strug- is counterbalanced by a slow and majority of the population,
gling with an economy on received the large majority
the brink of reprising the problematic nominations process of judicial appointments.
Great Depression of the and partisan obstructionism resulting in But President Obamas
1930s, two middle-eastern relatively small numbers of confirmations. first two years in office
wars, crushing deficits, a were not easy ones. His
lopsided tax policy that ambitious agenda met with
favored the wealthy and deprived the country of badly stiff resistance from a defiant and stubborn Republi-
needed tax revenue, a health care crisis, and myriad can minority in the Senate whose secret holds, threats
other problems. President Obama also inherited a poison- of filibusters, and deft use of Senate procedures were
ous political climate where hyperpartisanship put party
above the public interest and had trumped civility and The authors are very grateful to Senate staff for their invaluable help. In
addition, we benefited from speaking with present and former members of
compromise. the Justice Department and several persons outside of government. Some of
The new president promised a new direction and the those we spoke with requested anonymity and therefore are not identified
electorate gave him not only a decisive endorsement to by Nan name in this article. Among those who generously gave of their time are:
Aron, Danielle Cutrona, Vincent Eng, Curt Levey, and Christopher
pursue that direction and the agenda he had articulated Schroeder. Our thanks to all who spoke with us. Thanks are also due to
in the campaign but also a Congress controlled by Demo- Jeffrey Budziak for transcribing the interviews. We are solely responsible for
errors of fact and interpretation.
crats by large majorities. Part of that agenda, although not 1. Although the 2008 Democratic Party platform had only one paragraph
given much media attention at the time, was to use judi- devoted to the judiciary, it contained the promise: For our Judiciary, we
will select and confirm judges who are men and women of unquestionable
cial appointments to further ethnic and gender diversity talent and character, who firmly respect the rule of law, who listen to and are
on the bench.1 As the data reported in this article clearly respectful of different points of view, and who represent the diversity of America.
(italics added). See 2008 Democratic National Platform, Renewing Ameri-
reveal, at the end of President Obamas first two years in cas Promise, p. 55, available on www.democrats.org/about/party_platform.

262 Judicature Volume 94, Number 6 May-June 2011

used to slow down if not stymie the
Obama agenda including staffing
the judiciary. The Administration
also had difficulties in fashioning
effective and efficient judicial selec-
tion machinery.
Our purpose in this article, consis-
tent with the series of articles on judi-
cial selection2 that have appeared in
this journal since 1978, is to illumi-
nate the process by which federal
judges were chosen and the appoin-
tees who emerged from it during the
first two years of the Obama Admin-
istration and the 111th Congress. We
do this by way of extensive interview-
ing of key players and observers of
the process and also by a statistical
analysis of the biographical/demo-
graphical data of those confirmed
by the 111th Congress. The findings
for the Obama appointees are com-
pared to those of the appointees of
the previous four presidents.
Our interviews were conducted
with officials in the Department of
Justice and the Senate who partici-
pated in the nomination and/or
confirmation processes. Tellingly, no
one from the White House Coun-
sels office was able or willing to
meet with usthe first time in our
over 30 years of conducting our
research on judicial selection that
we have not had cooperation from
that office. While the perspective
from the White House Counsels
office would have been welcome, we
believe that our other sources have
enabled us to provide an accurate
portrait of the successes and failures
of the presidents judicial selection
team. Other sources included inter-
est group participants from groups
along the ideological continuum.
Data on the appointees were
derived primarily from the ques-
tionnaires completed by the judicial
2. The most recent article in the series is
Sheldon Goldman, Sara Schiavoni, and Elliot
Slotnick, W. Bushs Judicial Legacy: Mission Accom-
plished, 92 Judicature 258 (2009).
3. Interview with Nan Aron, November 30,
2010. All quotations in the text are from exten-
sive interviews we conducted during the week of
November 29, 2010, in Washington, D.C. Some of
those we spoke with agreed to be interviewed on
a not-for-attribution basis. Although unnamed,
we have noted their involvement in the process
although not with the degree of specificity that
would lead to their being identified.
nominees for the Senate Judiciary
Committee. The Committee posts
the questionnaires on line. Other
sources of demographic or back-
ground data included newspa-
per articles, and various resources
on line on the internet. Political
party preference or affiliation was
determined from either the ques-
tionnaires, newspaper sources, or,
in some instances, from registrars
of voters or boards of election for
the geographic area of primary resi-
dence of the appointees.
We first examine judicial selection
by the Obama Administration and
compare the process with that used
by Obamas predecessors in office.
We then focus on confirmation poli-
tics and processes. This is followed by
a demographic/background portrait
of the district court appointees and
then those appointed to the appeals
courts. The Obama judges are com-
pared to the judges appointed by
the previous four administrations.
Finally we speculate about the emerg-
ing Obama judiciary.
Great expectations
In the wake of eight years in office
during which George W. Bush made
both spectacular and unprecedented
use of the judicial selection process
in pursuit of his public policy agenda
and, as well, as a primary vehicle for
exciting his political base, expec-
tations ran extraordinarily high
among Democrats and progressives
who anticipated the nomination of
a diverse slate of left-leaning judges
by newly elected President Barack
Obama. The W. Bush tidal wave
would be abated and a rebalanc-
ing of the American judiciary would
occur as untold numbers of liberal
Obama appointees would take their
place on the federal bench as coun-
tervailing forces to W. Bushs legacy.
By the end of the 111th Congress,
some of these expectations were met.
Nan Aron, head of the liberal group
the Alliance for Justice freely noted:
Some of the nominees have been quite
good....We thought this was a new day
for us and a clear departure from the
past, and in some respects it has been.
Clearly, the kinds of nominees being
sent up to the Senate are different.3
Arons reference to the kind
of nominees chosen by Obama,
however, clearly speaks to their
extraordinary and unprecedented
diversity and not to their ideologi-
cal leanings. Indeed, pondering the
Obama nominees, Aron admitted
that, perhaps, it was collective expec-
tations and not Obamas nominat-
ing behavior that have been off the
mark:
He has made the claim over the years
that the courts really should not be an
engine for social change. That role is
more appropriately played by the leg-
islature and you dont want courts too
far out ahead of what the people want
and what Congress wants.
Characterizing that approach as
fine in the 1980s when you had
a responsible Congress, Aron con-
cluded that such views dont have
much relevance in todays world.
Another group spokesperson added,
He doesnt speak with passion about
the courts.
When major disappointment with
the raw numbers of nominations
made by the President and the con-
siderably smaller number of judges
confirmed in the 111th Congress,
coupled with an exploding vacancy
rate, are added to the mix, it is hard
to characterize the Obama nomina-
tion record as one of great success.
Indeed, contrasting Obamas first
two years to the W. Bush record, a
senior legislative aide to a Judiciary
Committee Democrat admitted his
disappointment but underscored
the political realities of what has
transpired:
There is no single way to slice this
where we have done nearly as well. I
think there was probably an expecta-
tion that this would go without taking
a lot of political capital, a lot of energy.
At least the non-controversial ones. I
think the liberal groups, whove been
disappointed by the picks, have not put
a lot of energy in the ...run of the mill
nominees. Im not sure that the White
House has put a ton of energy behind
a lot of nominees....I think everyone
woke up late to what a slog this actually
was going to be.
Surveying this landscape from
outside of government, an expert
observer of judicial selection politics
characterized the feelings of Obama
www.ajs.org Judicature 263
supporters on the political left as
ranging from total fed-up-ness on
one end to...palpable angst....People
are pulling their hair out....To read
the Bush record is absolutely breath-
taking. Bush knew how to play out
the active communicative role of the
presidency on this issue....The Bush
people have thrown down a gauntlet
for others to emulate.
Perhaps what we have witnessed
is simply, as one Democratic legis-
lative aide remarked, the realities
of governing versus the highs of
campaigns. Expressing his greatest
sense of disappointment the aide
added, You do everything...to avoid
having fights and you dont get the
results even if youve been willing
to compromise. I think its reflec-
tive of how everybody on the left
feels about everything right now.
Characterizing such compromise,
a prominent selection activist con-
cluded, were losing without a fight.
And to me that captures the whole
judicial selection process.
An aide to a high-ranking Judi-
ciary Committee Senate Democrat
observed, Wouldwe had liked
more nominations sooner? Sure.
Would we have liked there to have
been more hearings and more con-
firmations? Sure. Weve done the
best we can, in the time weve been
given, with the nominations weve
been sent.
The nomination process
Our description of the Obama
Administrations judicial nomina-
tions process is based largely on
an interview with Assistant Attor-
ney General Christopher Schroeder,
supplemented by the observations of
other actors in the process including
Senate staffers, interest group repre-
sentatives, and other expert analysts.
As noted, in all previous iterations of
this series, we have benefited from
interviews with the relevant Associ-
ate White House Counsel working
on judicial selection. While research-
ing this article, we were denied
such an interview despite numerous
efforts. One interest group advocate
observed that, after the midterm
election when the Democrats lost
their majority in the House and
264 Judicature Volume 94, Number 6 May-June 2011
came close to doing so in the Senate,
I think there was a clamp down...
There is a...filter now on their e-mail
system...Individuals I know who used
to communicate with the White
House now get an automatic bounce
back.
While there are significant sim-
ilarities between nomination pro-
cesses in the Obama Administration
and recent presidencies, it is also
evident that there are several key
differences. Viewed collectively, they
have enhanced the White House
role, while repositioning that of the
Justice Departments Office of Legal
Policy. As explained by Christopher
Schroeder:
We do...the professional evaluation
of the candidate...After we finish our
process and after weve prepared a
written memo and after the White
House decides on the basis of what
weve gathered so far [that] its worth
going further with the nominee, we
tee it up for the FBI....The decision
making as to who the presumptive
nominee is, is now concentrated in the
White House Counsels Office. They
do all the outreach to the home state
senators or the legislative delegation in
the case of states where there are two
Republican senators and no Democrat.
They do the intake, decide which of
the nominees that are in play at this
stage should be evaluated further, and
send us a name.
Once a week, there is a status
meeting on the various prospec-
tive nominees under consideration
which, unlike the Joint Selection
Committees of White House and
Justice Department personnel uti-
lized by every administration start-
ing with Reagans, includes no joint
face-to-face meeting during which
nomination decisions are definitively
made. The status meetings are pres-
ently held via telephone. According
to Schroeder:
My understanding is that in the early
days [of the administration]...there was
an effort made to continue the live
meetings which involved the same cast
of characters but was in person at the
White House. White House Counsel
representatives found the meeting
unwieldy and not as efficient use of
their time as they wanted. And, so, they
both simultaneously shaved down the
number of people participating in it
[and adopted a telephonic process].
Apparently, prior to these changes,
the groups size had grown to a point
where it was proving inefficient.
As one observer of the change noted,
the main attempt may have been to
pare down the size of the group and
the way to accomplish that was to
change the format and make it less
interesting for people to attend.
Assistant Attorney General Schro-
eder acknowledged that he, per-
sonally, does not often participate
in these discussions but, rather his
deputy overseeing nominations
does. In addition, Justice may be
represented by nominations person-
nel directly involved in the investi-
gations of the potential nominees
to be discussed. The White House
Counsel, who typically chaired the
Joint Committees face-to-face meet-
ings in previous presidencies, is
rarely a direct participant in the tele-
phone discussions. Associate White
House Counsel Susan Davies chairs
the status meetings on behalf of the
Counsels office. Also participating
routinely is a representative from the
White Houses Office of Legislative
Affairs who will be involved in the
eventual advice and consent pro-
cesses for those who are nominated.
The Presidents direct participa-
tion in the process appears to enter
into play at two discrete stages. Thus,
early on during a nominees consid-
eration, The White House Counsel
will prepare a decision memo for
him that typically involves more than
one vacant seat and that will come
up to him and hell come back with,
Yes, no, lets talk about this. The
Office of Legal Policy will be given
a signal at that point on whether
to go ahead with their professional
evaluation based on the Presidents
preferences. At the back end of this
decisional process, he gets a more
elaborate decision memo...when
weve completed all of our work and
the FBI has completed its work and
the ABA has completed its work.
This memo will be focused on the
people that weve evaluated thus far
as to whether to go ahead and nomi-
nate them.
In our interviews beyond the direct
participants in the administrations
diego radzinschi
Associate White House Counsel
Susan Davies chairs the status
meetings on behalf of the
Counsels office.
processes there was a clear recogni-
tion of the White Houses ascen-
dancy at the expense of the Justice
Department. Some attributed this,
in part, to the unusual length of
time, over a year, that it took to
confirm Assistant Attorney General
Schroeder to head the Office of
Legal Policy. For some, this delay
was seen as a purposeful strategy
of the minority Republicans. Schro-
eder, himself, questioned whether
such a strategy would have had a
significant impact:
I dont think well ever know. I do
think there was a [Republican] strat-
egy fairly early on to slow walk as many
judges as possible and its conceivable
that somebody saw keeping this office
empty as a way to further that....I
dont think they would think that very
long because, in fact, the part that
we have done, you can do without a
confirmed Assistant Attorney General
and the part the White House does
was in place. The people there are staff
without the need for Senate confirma-
tion. So I dont think, as a practical
matter, it did slow the process down
very much if it all.
Office followed any concerted plan
of the administration but may have
simply happened as a response
to the rhythm, ebb, and flow of
the playing out of actual selection
processes. At first, even though the
Office of Legal Policy did not have
its leadership in place, they were
somewhat more active players in
the process than they were to later
become because there was also
an experiential void in the Coun-
sels Office. There, White House
Counsel Gregory Craig was much
more engaged in matters of exec-
utive power and foreign policy,
largely with respect to events at
Guantanamo Bay, than he was in
the process of choosing judges. His
primary judicial selection assistant,
Cassandra Butts, was characterized
by our sources as well liked and
quite competent, but inexperienced
in judicial selection. One expert
analyst summarized the problem-
atic situation. I dont see anything
that they...did to make it a priority.
They didnt staff it sufficiently at the
White House. They didnt elevate
it.
Two events, it appears, led to the
ultimate emergence of the Coun-
sels Office as the dominant judi-
cial selection player. One was the
replacement of Craig with Robert F.
Bauer. Nan Aron pointed out that,
when Bauer came in, the process
proceeded much more rapidly....
There was a lot more energy and
(bottom) with Robert F. Bauer (left).
enthusiasm in the White House
Counsels Office to send up nomi-
nees more rapidly. At least as
important as the positives associ-
ated with Bauer was the perceived
failure of Office of Legal Policy staff
to catch the gaps in the candidate
questionnaire of Goodwin Liu, the
administrations most controversial
nominee to date.
The primary role of the Obama
White House in trumping any poten-
tially substantive Justice Department
role in choosing nominees was
noted in several of our interviews,
often from a less than benign per-
spective. One interest group leader
characterized the situation as one of
total control by the White House
with Justice solely used as a place to
vet nominees, in contrast to previ-
ous administrations where Justice
lawyers were active participants in
the actual selection process.
Another observer further under-
scored that there was a scale back
from the White House Counsels
Office on...how much they wanted
to defer to Justice in doing certain
things and then taking a lot more
stuff in-house instead....Justice is
kind of irrelevant in the nomina-
tions process in many situations.
While taking on primacy in the
process, little else changed with
regard to the resources for the task
at hand. A selection lobbyist from
the Democratic left observed, as
you had more work being brought
The ultimate emergence of the
Counsels Office as the dominant
judicial selection player was the
replacement of Gregory Craig

It remains true, however, as a

Senate Judiciary Committee Dem-
ocratic staffer noted, that as the
White House and DOJ were working
out their processes for vetting nomi-
nations, there wasnt a full opera-
tion at DOJ. An expert observer
added that the Schroeder situation,
aborted liftoff of the staffing at OLP.
You just cant fly with one wing.
It does not appear that the emer-
gent dominance of the Counsels diego radzinschi

www.ajs.org Judicature 265

to the White House Counsel you
still had the same people...It was the Some notable
same small team of people just doing
more work....Logistically, that is just
going to slow you down.
Obama appointees
In the final analysis, the weight of
the evidence clearly suggests that,
O f the 59 lifetime lower federal court judges confirmed to courts
of general jurisdiction, we offer here capsule biographies of some
of the noteworthy appointees. Note that those profiled here were
during the 111th Congress, the unanimously rated Well Qualified by the Standing Committee on
Obama judicial selection machin- the Federal Judiciary of the American Bar Association.
ery suffered from organizational
and coordination weaknesses. One
critical analyst noted that these were Irene Cornelia Berger, a native of Richmond, Virginia, received her
inexcusable flaws. Its not putting undergraduate and legal training at West Virginia University. She
a man on the moon....It isnt rocket worked as a county prosecutor for 12 years and had a brief stint
science.....Youve got to have the as an assistant U.S. Attorney before ascending the state bench in
resources ....They just never got it 1994 as a Circuit Judge for Kanawha County. Although a Demo-
going. crat, she has never been politically active. She was unanimously
By several accounts, however, the confirmed on October 27, 2009, to the U.S. District Court for the
administration may actually have Southern District of West Virginia.
gotten it going towards the end of
the congressional session. While the Denise Jefferson Casper was born in East Patchogue, New York,
payoff in lame duck confirmations and was educated at Wesleyan and the Harvard Law School. She
was not substantial, we have noted subsequently clerked at the Massachusetts Appeals Court before
the recognition that, under Robert joining a prestigious law firm. She eventually left private practice
Bauer, the White House Counsels to become an assistant U.S. Attorney, a post she held for over
judicial selection activity ran more six years. She then joined the Middlesex District Attorneys office
smoothly, albeit while, still, being in 2007 where she served as deputy district attorney. She has
short staffed. Similar improvements no record of political activism. The first African-American woman
have begun to be felt at the Depart- named to a lifetime position on a federal court in Massachusetts,
ment of Justices Office of Legal she was unanimously confirmed on December 17, 2010, to the
Policy as overseen by Christopher federal district court for Massachusetts.
Schroeder.
J. Michelle Childs was born in Detroit, Michigan, received her B.S.
Consulting senators
from the University of South Florida and her J.D. (and also a M.A.
One of the central realities of nomi-
in business) from the University of South Carolina. She was in
nation processes and politics during
private practice for eight years and served in state government
the 111th Congress was the widely
for six before ascending the state bench in 2006 as a circuit court
acknowledged importance of con-
judge. She has no record of political activity. She was unanimously
sultation to the administration as
confirmed on August 5, 2010, to the U.S. District Court for South
part of its clear effort to avoid battles
Carolina.
and facilitate a smooth confirmation
process. The lessons of history when
Denny Chin is the first Asian American
inadequate consultation was per-
to serve on the U.S. Court of Appeals
ceived to have occurred, particularly
for the Second Circuit. He was born in
by the minority party in the Senate,
Hong Kong and raised in the United
strengthened such a resolve.
States. His undergraduate education
As one high ranking Senate Judi-
was at Princeton and his legal train-
ciary Committee aide speculated,
ing at Fordham Law School. Upon
the President must have thought,
graduation from law school he served
If I can work at the front end
as a law clerk to federal district judge
of this process...so Im nominat-
Henry Werker. He had experience as
ing nominees that Senator Isakson,
an assistant U.S. Attorney, and as a
Senator Chambliss approve or that
partner in a New York law firm before
Senator Lugar approves or Senator
being appointed to the federal district
Kyl, Senator McCain approves,
bench in 1994 by President Bill Clinton. On October 6, 2009, he
then I wont have fights. Such an
was nominated to the appeals court and on April 22, 2010, he was
approach would seem to make even
unanimously confirmed. Although a Democrat, he did not have a
greater sense for a president, such
history of being politically active when he was in private practice.

266 Judicature Volume 94, Number 6 May-June 2011

William M. Conley was born in Rice Lake, Wisconsin, and had his as Obama, for whom the primary
undergraduate and legal education at the University of Wisconsin. agenda items were bold legislative
Upon graduating law school, he clerked for U.S. Court of Appeals initiatives, not judges.
Judge Thomas Fairchild for two years and then entered private Indeed, the President had already
practice where he remained until ascending the bench. He was been put on notice by the entire
listed in the Best Lawyers in America series. He was an active Republican caucus, through an open
Democrat who did campaign work for Senator Russell Feingold. letter, delivered in March, 2009,
He was unanimously confirmed on March 4, 2010, to the U.S. vowing to prevent the confirmation
District Court for the Western District of Wisconsin. of judicial nominees in instances
where Republican home-state sena-
Albert Diaz was born in Brooklyn, New York, did his undergraduate tors were not properly consulted.4
work at the University of Pennsylvania, and received his law degree This public threat, occurring before
from N.Y.U. He served as a prosecutor for the U.S. Marine Corps, a single Obama judicial nominee had
worked in private practice, and in 2001 joined the North Carolina even been submitted to the Senate,
Superior Court. At the time of his nomination to the U.S. Court of underscored the central impor-
Appeals for the Fourth Circuit, he was a special superior court judge tance of nominating individuals who
serving on the North Carolina Business Court. Although identified in would pass successfully through the
the press as a Democrat, he had no record of being politically active. Senates blue slip process, a mecha-
He was confirmed by voice vote on December 18, 2010, and is the nism through which the home-state
first Hispanic American to serve on the Fourth Circuit. senators of a nominee, regardless
of party, can indicate support for,
Gary Scott Feinerman from Skokie, acquiescence in, or opposition to the
Illinois, did his undergraduate work presidents selection. The theoreti-
at Yale and his legal training at cal importance of gaining supportive
Stanford. Upon graduation, he served or, at least, non-objecting blue slip
as a law clerk to Judge Joel Flaum returns can be critical in a Senate as
on the U.S. Court of Appeals for the divisive as the 111th, as an aide to a
Seventh Circuit and then as a law clerk Senate Judiciary Democrat noted,
for Supreme Court Justice Anthony because, the nominees who have
Kennedy. He served for two years in come through Republican blue slips
the Clinton Administration as counsel stand a better chance of success now
in the Office of Policy Development than other nominees because it is
in the U.S. Department of Justice. He much harder for them to be held.
also served for four years as Solicitor Nominating a bunch of guys to no
General for the state of Illinois. In 2007, he joined a major law firm, returned blue slips isnt actually
the position he held when named and then unanimously confirmed progress, it just looks like progress.
on June 28, 2010 to the federal bench for the Northern District of The administrations unusual
Illinois. In 2007-2008 he served as chair of Senator Obamas Law success in gaining blue slip support
& Judiciary Policy Committee. of or acquiescence to its nominees is
something that does, however, take
Audrey Goldstein Fleissig from St. Louis, Missouri, was educated at considerable time and, as well, can
Carleton College and the Washington University School of Law. still exact some cost. Nowhere was this
She practiced in a major St. Louis law firm for about 11 years more evident than when, after con-
before joining the U.S. Attorneys office in 1991 as an assistant siderable time and much speculation,
U.S. Attorney. In 2000, she was appointed U.S. Attorney and in President Obama unveiled his first
2001 began service as a U.S. Magistrate Judge, the position she judicial nominee, a long-term district
held when named to the Eastern District of Missouri federal bench. court judge who had served a decade
She was unanimously confirmed on June 7, 2010. Although she and a half on the federal bench, David
had no record of political activism, she was mentioned in the press Hamilton, with the strong support of
as being a Democrat. the respected senior Senate Repub-
lican Richard Lugar. (See A tale of
Joseph A. Greenaway was born in London, England, and raised in two nominees p. 282.)
the United States. He studied as an undergraduate at Columbia That a seemingly qualified moder-
University and was trained in the law at Harvard Law School. Upon ate judge like Hamilton, along with
graduating law school, he served as a law clerk to federal district a long list of other nominees, were
judge Vincent L. Broderick. He subsequently worked in the private
sector and also served as an assistant U.S. Attorney before being 4. Republican senatorial caucus letter of
March 2, 2009, posted on the Republican.Senate.
tapped by the Clinton Administration for the district court bench in Gov website.
1996. He served on the district court until unanimously confirmed

www.ajs.org Judicature 267

held up and went through tortur-
ously slow confirmation processes
(discussed below) may not mean that
the Obama strategy was wrong per
se but, rather, it is clear that it did not
work because, as a Democratic Judi-
ciary Committee aide noted, theres
this systematic leadership-led refusal
to consent. That doesnt mean
somebodys sitting, holding Mary
Murguia, Scott Matheson or Albert
Diaz. It does mean that Senate floor
action on Obamas nominees often
moved at a snails pace, with the
possibility of having to implement a
time-eating cloture process never far
from center stage. The consequence
for the Democrats, of these Repub-
lican tactics, has been great frustra-
tion on many levels. As an aide to a
high ranking Democratic Judiciary
Committee senator stressed:
If you are going to filibuster somebody
who is going to be a 99-0 pick, why
shouldnt I nominate 100 Goodwin
Lius because they are all going to have
to go through cloture anyway? Hon-
estly...what has the President gotten
for working so hard...to get blue slips,
for disappointing the liberal base with
moderate picks? What has been the
outcome of that? It hasnt been getting
80 of your moderate picks through
versus 40 of your more ideological
picks through. It has been the same
as if every one of these nominees were
Goodwin Liu.
The portrait we have drawn of the
consultative approach of the admin-
istration has not been disputed by
the minority Republicans who do,
nevertheless, offer a somewhat differ-
ent understanding of what we have
described. As exemplified by com-
ments of the Minority Chief Counsel
for Nominations to the Senate Judi-
ciary Committee, Danielle Cutrona:
The administration does talk to home
state senators...For the most part, I
havent heard any complaints that the
administration hasnt run a nominee
by a home-state senator. However,
it doesnt necessarily mean that the
administration is listening to the
caucus as a whole.
This suggests the expectation of
the minority for an unprecedented
de facto veto power never contem-
plated by the Senates blue slip
system, nor enjoyed by any minority
268 Judicature Volume 94, Number 6 May-June 2011
on February 9, 2010, over seven months after being nominated by
President Obama for a seat on the U.S. Court of Appeals for the
Third Circuit. A Democrat, he was not active in politics.
David F. Hamilton was born and raised
in Indiana, educated at Haverford and
Yale Law School, was a Fulbright
scholar, served as law clerk to Judge
Richard Cudahy of the U.S. Court of
Appeals for the Seventh Circuit, and
was active in Evan Bayhs political
campaigns, later serving as Counsel
to Governor Bayh. At the age of 37 he
was nominated by President Clinton
and confirmed in 1994 to the federal
district bench despite opposition
by the American Bar Association.
Judge Hamilton distinguished himself on the bench and when he
was nominated on March 17, 2009, for elevation to the Seventh
Circuit by President Obama (he was the Presidents first judicial
nomination), Judge Hamilton received overwhelming bipartisan
support in Indiana and by a unanimous vote received the highest
rating by the Standing Committee on the Federal Judiciary of
the American Bar Association. Hyperpartisanship in the Senate
delayed confirmation and Republicans eventually conducted a
filibuster that was broken on November 17, 2009. On November
19, some eight months after first being nominated, Judge Hamilton
was confirmed by a vote of 59 to 39, with just one favorable
Republican vote, from the senator from Indiana.
Ellen Lipton Hollander was born in New
York City and educated at Goucher
College and Georgetown University
Law School. She served as a law
clerk to federal district judge James
R. Miller, Jr., then as an assistant
U.S. Attorney. Subsequently she was
in private practice for approximately
10 years. She began service as a
Maryland state trial judge in 1989 and
was serving as an associate judge of
the Maryland Court of Special Appeals
when elevated to the federal district
court of Maryland. Although a Democrat, she had no record of
prominent party activism. She was unanimously confirmed on
December 18, 2010.
Barbara Milano Keenan was born in Vienna, Austria. Her higher
education was at Cornell and then the law school at George
Washington University. Upon graduating law school she was an
assistant Commonwealths Attorney for Fairfax County, Virginia,
for two years. She subsequently entered private practice for over
four years before embarking on a judicial career. She first served
as a local judge, then served on the Virginia Court of Appeals
before joining the Supreme Court of Virginia in 1991, the post she
held when nominated for the U.S. Court of Appeals for the Fourth
Circuit. Her public record does not indicate any background of
political activity nor identification with any political party. She was
unanimously confirmed on March 2, 2010.
 Gerard E. Lynch, a New Yorker, has party caucus in any past exercises of
spent almost his entire professional life advice and consent in judicial selec-
in New York City. His undergraduate tion history.
and law school education was at
Columbia University (he graduated Speed and numbers
first in his undergraduate and law Throughout the 111th Congress,
school classes). After law school he while the organizational and coor-
clerked for U.S. Court of Appeals dination difficulties of the Obama
for the Second Circuit Judge Wilfred judicial selection processes largely
Feinberg and then Supreme Court escaped public notice, the same
Justice William Brennan. He has could not be said of the disap-
taught at Columbias law school since pointment the Presidents support-
1977. Among other professional ers had with the speed with which
assignments, he worked as an assistant United States Attorney, nominations were being made. The
including serving as Chief of the Criminal Division in the Southern resulting relatively low number of
District of New York, and was counsel to a well-known law firm nominees coupled with the burgeon-
practicing white-collar criminal defense. He was nominated in ing number of vacancies and, most
2000 by President Clinton for the federal district court bench for the of all, the relatively low number of
Southern District of New York. President Obama elevated Judge judges actually confirmed during the
Lynch to the U.S. Court of Appeals for the Second Circuit. He was congressional session were cause for
confirmed on September 17, 2009, by a vote of 94 to 3. Judge concern.
Lynch was a registered Democrat with no public record of party In a partial response to critics, the
activism when he first ascended the federal bench. Presidents supporters in the Senate
could point to the necessity of sepa-
rating the issues of nominations and
Beverly Baldwin Martin was born in Macon, Georgia, earned her confirmations, and not to conflate
bachelors degree from Stetson University and her law degree the two. As a Judiciary Committee
from the University of Georgia. Her varied career includes working Democrat aide posed the matter:
in private practice, then serving at the state level as an assistant The important thing when you ask
Attorney General, then moving to the U.S. Attorneys Office as an the [nominations] question...is to not
confuse that issue with the confir-
assistant U.S. Attorney and eventually serving as U.S. Attorney.
mation issue, and that is something
She was serving as U.S. Attorney when appointed by President Republican senators will do, which is
Clinton in 2000 to the federal district court bench. President to answer the question, Why arent we
Obama nominated her for elevation to the Eleventh Circuit on June acting on these 16 nominees who came
19, 2009. On January 20, 2010, she was unanimously confirmed. out [of the committee] unanimously?
and theyll say, Well, where are the
A Democrat, Judge Martin has not been actively involved in
other forty?
politics.
As a practical matter, as another
Kimberly Jo Mueller was born in Newton, Democratic legislative aide pointed
Kansas. She was educated at Pomona out, Arguably it cuts the other way.
College and Stanford Law School. You could be so flooded with nomi-
She was an extern in the chambers nations that you would not have time
of former District Judge David F. Levi to attend to all.
(Eastern District of California.). Before Recalling that scenario in the W.
her appointment as U.S. Magistrate Bush administration when the Presi-
Judge in 2003, she worked in private dents highest priority in judicial
practice including three years with her selection was to send the names
own firm. From 2001 to 2003 she was of large numbers of conservative
the appointed Public Member of the nominees to the Senate, a majority
Cal/OSHA Standards Board. From Judiciary Committee staff assistant
1987 through 1992 she served as an noted, When Senator Leahy first
elected member of the City Council of Sacramento, California. became Chairman...he physically
She was a delegate to the 1992 Democratic National Convention. couldnt hold hearings on nominees
She was serving as a U.S. Magistrate Judge when nominated for that theyd been able to push out of
elevation to the federal district bench for the Eastern District of the White House. Striking a sharp
California on March 10, 2010. She was unanimously confirmed the contrast with the Obama process he
following December 16. added, Well, they pushed them out
because they didnt care about blue

www.ajs.org Judicature 269

slips, and they didnt care about the
ABA, and they didnt care about any
of the vetting that this White House
has done, so they got a bunch of
them out.
There is a juncture, however, when
the confirmation process reaches a
saturation point, an equilibrium of
sorts where a balance is arrived at
between nominations submitted and
nominees processed. The same aide
spoke of a hearing process that:
goes at a certain pace and you can go
a little bit faster, but you cant go 100
miles per hour faster. We didnt hold
hearings every week....If you take this
seriously and really want to give the sen-
ators and their staffs a chance to look at
these, there is a pace. Now you can go
a little bit faster and a little bit slower,
but you cant go light years faster. So
they couldnt all be done, there was a
backlog of nominations in Bushs first
year, first year and a half. We started
working through them...and it sort
of skews the numbers because when
people say, Oh, well, this nomination
was pending for so long... Yeah, but
there were 50 nominations pending.
And when we did them in what seemed
like a logical order, they couldnt all be
in the first year.
Granting these arguments and
observations, one still must conclude
that the numbers of nominees sent
to the Senate by the Obama admin-
istration remained small by any stan-
dard of comparison. It was reported
in our interviews that members of
the Obama transition team met with
Senator Leahys staff and received
the:
very clear message that the most
important thing you could do...for the
nomination of judges was to get the
pipeline moving quickly. The Senate
has a...steady rate that it can process
judges and if youre empty in the
beginning...theres going to be hearing
days, and there are going to be Execs,
and there are going to be...moments
on the floor that you cant recover....
And for reasons that arent known, in
the early days the administration wasnt
able to act on that news.
Jacqueline H. Nguyen was born in Dalat, Vietnam. Her higher
education was at Occidental College and at the law school at
UCLA. Upon graduating law school, she entered private practice
for about three years, then moved to the U.S. Attorneys office
as an assistant U.S. Attorney, a position she held for about
seven years. In 2002, she was appointed by the governor of
California to the Los Angeles Superior Court bench, the position
she was serving in when nominated on July 31, 2009, to the
federal district court for the Central District of California. She was
unanimously confirmed the following December 1. She has no
record of political activism.
Christina C. Reiss is the first woman to
serve on the federal district bench in
Vermont. She was born in Denver, Col-
orado. She did her undergraduate work
at St. Michaels College and her legal
training at the University of Arizona
School of Law. She was a law clerk for
the Maine Supreme Judicial Court, and
entered private practice for approxi-
mately 14 years before becoming a
state district court judge in 2004 in Burl-
ington, Vermont. She was nominated to
the federal district court for Vermont on
October 13, 2009, and confirmed by voice vote the following Novem-
ber 21, a record for this Congress. Perhaps not coincidentally the
chair of the Senate Judiciary Committee, Judge Reisss sponsor, is
Senator Patrick Leahy of Vermont. Judge Reiss was not active politi-
cally. Press reports did not identify her with either political party.
Richard G. Seeborg was born in Land-
stuhl, Germany. His undergraduate
degree is from Yale and his law degree
from Columbia. He was a law clerk to
federal district judge for the District of
Columbia, John Pratt, after which he
entered private practice for about nine
years. He then was an assistant U.S.
Attorney for seven years, went back to
private practice and was appointed a
U.S. Magistrate Judge in 2001. It was
from this position that he was nomi-
nated for the federal district court for
the Northern District of California on August 6, 2009. The following
December 24, he was confirmed by voice vote. He did not have a
public record of political activity but is a registered Democrat.

While some of the reasons for
this, particularly the administra-
tions highest priority, its legisla-
tive agenda, help to explain what
transpired, as one early participant
observer of the process opined, Par-
ticularly with some of the courts of
appeals judges, I think we debated
for a long time instead of decisions
being made with a sense of urgency.
At the trial court level:
less urgency was placed on home-state
senators to finish their slate of district
court possibilities so the whole process
just lacked a sense of urgency in the
beginning and at various points that had
the effect of slowing down our ability to
get names up to the Committee. We got
behind and its very difficult to catch up.
A spokesperson for a liberal lob-
bying organization in the process

270 Judicature Volume 94, Number 6 May-June 2011

Peter Lester
Thomas I. Vanaskie, a Pennsylvania
native, was an undergraduate at
Lycoming College and a graduate of the
Dickinson School of Law. He clerked for
federal district judge William J. Nealon
for two years and then went into private
practice for about 14 years. During his
years of private practice he worked
with Robert P. Casey and then served
as Counsel to Democratic Governor
Robert P. Caseys campaign commit-
tee. In 1994, President Clinton named
him to the federal district court for the
Middle District of Pennsylvania, the post he occupied when nomi-
nated to the U.S. Court of Appeals for the Third Circuit on August 6,
2009. He was confirmed on April 21, 2010, by a vote of 77 to 20.
James A. Wynn from North Carolina did his undergraduate work at
the University of North Carolina and legal training at Marquette. He
also earned a Master of Law degree from the University of Virginia.
He was in the Judge Advocate Generals Corps of the U.S. Navy
and subsequently entered private practice. He was an Associate
Judge on the North Carolina Court of Appeals beginning in 1990.
President Bill Clinton first nominated him for the U.S. Court of
Appeals for the Fourth Circuit in 1999 and again in 2000 but Judge
Wynn was blocked for political reasons unrelated to his outstand-
ing credentials. President Obama nominated him on November 4,
2009, and Judge Wynn was confirmed on August 5, 2010, by voice
vote. A Democrat, he did not have a record of party activity. g
diego radzinschi
Ideology is, of course, somewhat in the eyes of the
beholder and, to Danielle Cutrona, Minority Chief
Counsel for Nominations, Obama was following
a progressive, liberal view.
confirmed that, even today, you nominees. I think in many instances
have Democratic senators, two the nominees arent there.
Democratic senator states where While these points are all well
they havent submitted names for taken, and its hard to have that
the district courts....I think the obstruction message...when you
White House Counsel would love to dont have that many nominees
nominate or roll out a number of out there to begin with, it remains
the case that the absolute number
of Obama judicial confirmations
during the 111th Congress falls short
of the bar set by his predecessors,
including W. Bush. A majority Judi-
ciary Committee aide reported that,
as of the day we were speaking:
With a Democratic Senate we con-
firmed 100 of President Bushs
nominees in the 107th Congress.
We reported 100 out of Committee
and 100 were confirmed...Chairman
Leahy made a point of wanting to
move on noncontroversial nominees
expeditiously, and a number of con-
troversial nominees moved....Michael
McConnell, who is a very provoca-
tive law professor, who is really an
analogue to Goodwin Liu...incredibly
well regarded, incredibly smart, very
provocative, was confirmed in the lame
duck in 2002....So it wasnt like we were
just doing the medium nominees......
Theres certainly a tradition of fighting
over a handful of controversial nomi-
nees. How did we land at 41 today?
Thats where we are today, 41 versus
one hundred...The Republicans have
pointed a finger at a slower nominating
process...but that doesnt explain the
numbers.....I cant think of an Obama
judicial nominee that did not receive
the support of the Republican home-
state senators, and yet they turned
on them and wont let them through.
A question of ideology
Perhaps equaling the disappoint-
ment over the speed and numbers
of Obama nominees among the
Presidents base supporters was a
generalized sense that, while they
were of high quality, they were
relatively moderate in their views
on the issues that so highly divided
the country and that, jurispruden-
tially, they would not be an effec-
tive counterbalance to the W. Bush
cohort already on the bench in large
numbers.
Ideology is, of course, somewhat
in the eyes of the beholder and,
to Danielle Cutrona, Minority Chief
Counsel for Nominations, Obama
was following a progressive, liberal
view of the Constitution and the law
and has chosen judges that are in that
vein. A somewhat softer assessment
of Obamas choices, however, was
offered by Curt Levey, head of the
conservative Committee for Justice,
a leading interest group opposing
www.ajs.org Judicature 271
liberal activist judicial nominations:
I cannot say I expected him to appoint
a bunch of Goodwin Lius....I always
thought he would appoint fairly mod-
erate people because I think you
accomplish as much with a lot less
headache. I think a moderate liberal
will, on the big issues, pretty much
vote the same way as Goodwin Liu
and...you dont spend nearly as much
political capital. I realize that you have
to have a certain number of Goodwin
Lius just to keep the base happy. And
I know other people have been sur-
prised....They expected a whole bunch
of Goodwin Lius.
Such expectations were clearly not
met and, as Leveys opposite number
from a left leaning group character-
ized the situation, There was a hope
that there would be an opportunity
to appoint...progressive judges....I
think very soon into the Obama
Administration it became clear...that
a lot of nominees were consensus
nominees. Like Levey, this indi-
vidual was not necessarily surprised
by this turn of events:
When we started thinking about it, it
was a little bit more consistent with his
philosophy...of trying to work across
the aisle. So a lot of the nominees
were good, obviously all of them were
good, but they werent...what I think
some of the groups were looking for....
Goodwin was the most...exciting, or
depending on where you are coming
from, controversial nominee.
The Alliance for Justices Nan
Aron shared the view that the picks
have been solid judges. Solid, solid
judges. But save for Goodwin Liu,
they have not come from beyond the
ideological safety zone:
What the Bush administrations, the
Reagans were able to do was to look
outside of the district court bench and
look to the law schools. Look to those
who have written extensively about the
courts and shared their vision of the
Constitution....Individuals who can be
counters to the Posners, the Easter-
brooks on these circuits. The only indi-
vidual who really fits into that category
is Goodwin Liu.
Perhaps those who lamented the
consensus nature of the Obama
nominees would be less critical if
the approach got the President
something in return, large numbers
of confirmed judges for example,
272 Judicature Volume 94, Number 6 May-June 2011
bipartisanship on the nominees
themselves or in other policy arenas.
Consequently, their biggest frustra-
tion has been the seeming lack of
such comity. This point was not lost
on an aide to a senior Judiciary Com-
mittee Democrat who noted:
I think the left has been very dis-
appointed in the picks....And so you
would think, taking that hit, that youd
at least get the volume of well qualified
picks through...These are not contro-
versial nominees and they have been
used as a tool by the Republican leader-
ship....Theyve been held hostage.
Another participant in the process
considered the relationship between
the nominee choices and the multi-
ple goals of the White House. There
are a lot of vacancies and sometimes
you do different things with different
vacancies. In a few instances, the
White House might have thought
a judgeship could advance another
presidential priority, perhaps, a key
legislative initiative by accommodat-
ing Republican senators on judges.
In such limited instances, quality and
integrity were never sacrificed, but
it was, basically a pragmatic call.
Some people were nominated, as in
every presidency, with a calculation
that was predominantly political,
not policy or personal. While such
an approach was not utilized often,
perhaps in contrast to previous
administrations, At the end of the
day, I dont think it got us anything
we wouldnt have had otherwise.
Priorities
The surest key to understanding the
politics, processes, and outcomes of
the Obama judicial selection record
in the 111th Congress is the rec-
ognition that judges were not seen
as a priority by those closest to the
President. Judicial selection was not
a major focal point in the adminis-
trations legislatively driven domestic
policy agenda, nor was it seen as a
legacy issue. There was a failure
to understand that the judiciary
would inevitably become particularly
central to the very legislative agenda,
health care reform, that was the
Presidents greatest priority.
The low prioritization of judicial
selection was an initial puzzlement
to many, perhaps none more so than
to the other side as exemplified by
Curt Levey, the Executive Director of
the Committee for Justice:
One of the biggest surprises is that he
hasnt made it a big priority. I know
the left is unhappy with that. I think
the conservatives are surprised by it.
Certainly everyone I talk to is surprised
by it.
At first blush, it is easy to find
scapegoats somewhat distant from
the White House itself, given what we
have already noted about the lengthy
start-up difficulties encountered in
the Office of Legal Policy (OLP) as
well as the reality that, ultimately,
once nominees were moved from
the Senate Judiciary Committee to
the chamber floor, the matter of
scheduling confirmation votes and
prioritizing them devolved to Senate
Majority Leader Harry Reid.
Both of these explanations fail to
convince, however. In Leveys view,
one substantive explanation for
the administrations relative lack of
aggressiveness in pursuing the courts
card was its wish to steer clear, as
much as possible, from engaging the
social issues that were of such criti-
cal import to the opposition. The
judges fight is so closely tied to social
issues, he observed. Characterizing
Obama as sheepish on such issues,
Levey saw a deliberate strategy to
not engage on:
issues like abortion and gay mar-
riage and guns....He has just picked
his fights....I think you cant fight hard
on judges without getting into...a lot of
these social issues. I just dont think he
has the stomach for it.
For his part, Harry Reid was facing
a difficult re-election battle at home,
one that would not benefit from
his delivering up to the President a
strong cohort of judicial nominees
approaching Election Day. As Curt
Levey noted, a similar difficulty may
have brought down Tom Daschle, a
Senate leader facing re-election and,
perhaps, paying too much atten-
tion to the Presidents priorities and
not his own. Still, nevertheless, as a
group spokesperson sympathetic to
the administration noted, Nobody
is pinning this on Harry Reid.

At the most basic level, staffing the
federal bench was not a high priority
likely because administration offi-
cials, particularly Chief of Staff Rahm
Emanuel, did not view the judiciary
as an institution that could facili-
tate the administrations agenda nor
assure its legacy. One expert observer
noted, The single biggest roadblock
was Rahm, along with the first White
House Counsel, Gregory Craig. An
expert analyst of the process sympa-
thetic to the administration added of
Emanuel that:
there you have somebody whos not
a lawyer, came from the House. I dont
think he had any grasp of this, had no
connection, even though he was the
policy driver, to see how important this
process and its results were to the fire-
wall for the policy achievements....He
apparently governed in a completely,
Im in control of all this way...and he
was very aggressive about putting down
judges...in staff meetings and in other
kinds of meetings where people would
talk about action priorities.
Put succinctly by an interest group
leader from the political left, Rahm
Emanuel kept the trains moving and
the trains were legislation. As for
White House Counsel Craig, it was sug-
gested in our interviews that his priori-
ties were elsewhere. He was concerned
with Guantanamo and executive
orders about torture, with the judges
issue falling off the radar screen.
That the administration arrived in
office with an aggressive legislative
agenda and that it was successful in
passing its greatest priorities, albeit
with much compromised in the give
and take of legislative policy making,
can be readily acknowledged. And as
an expert analyst noted, the legisla-
tive agenda being pursued was so
aggressive that it simply drowned out
other stuff.
Curt Levey underscored that, You
can only make so many things pri-
orities....There is limited board time,
limited speech time. And what time
there was, Danielle Cutrona opined,
had to be devoted to prioritizing
campaign pledges.
I think there were very high
5. Citizens United v. Federal Election Commis-
sion, 130 S. Ct. 876 (2010), 558 U.S. ___(2010).
expectations, given all the promises
that were made during the campaign.
And those were the centerpieces. I
just think he needed to devote...all of
the resources that he could to those
things. I think it is as simple as that.
The lynchpin of such legislative
pursuits was, of course, health care
reform, and the overwhelming domi-
nance of that single hydra-headed
issue came to demand all of the
administrations energies. Vincent
Eng, Deputy Director of the Asian
American Justice Center, summa-
rized the setting facing those who
wished to jumpstart a judges agenda:
Health care was his biggest thing...and
the entire White House, the adminis-
tration, was set up around that. Every-
thing yielded to this giant...It didnt
make a difference if it was judges,
international relations, whatever.
Everything revolved around this....I
think the difficulty is when you have
a strong legislative agenda, everything
yields to that.
While the demands of health care
reform undoubtedly exhausted the
administrations energies, a thought-
ful participant in the process made a
more generic observation.
My perhaps overly simplistic judgment
is that Democrats are essentially the
party of legislating and the Republi-
cans are much more concerned with
making sure that people who are sym-
pathetic with their policy interpreta-
tions of the Constitution are on the
courts. They have more invested in
it...and their base cares more about
it....We tend to think we can accom-
plish the objectives of the Democratic
agenda by legislating, by being active in
the elected branches. Thats oversim-
plified, but I think there is some kernel
of [truth to] that.... I dont think Presi-
dent Clinton invested enough capital
in judicial candidates and I think weve
seen something of the same underin-
vestment in this administration so far.
The analogy drawn to the Clinton
judicial selection process runs a good
deal deeper than the issue of under-
staffing. One disappointed group
spokesperson observed that, other
than the controversial remarks the
President made about the Citizens
United Supreme Court decision5 in
his State of the Union address:
He has been absolutely silent. The
process still feels so Clinton in the
sense that its, Put up nominees, dont
dennis brack
Once nominees were moved from
the Senate Judiciary Committee
to the chamber floor, the matter
of scheduling confirmation votes
and prioritizing them devolved to
Senate Majority Leader Harry Reid.
ruffle any feathers. Dont provoke
organizations on either the left or the
right. Find middle of the road candi-
dates. And try to maneuver the process
under the radar screen. If you talk
to the nominees...its do it yourself
nomination.....Does the White House
make calls?....We dont think theyre
engaged in this at all.
This view was corroborated by a
second group leader on the left. Its
pretty much limited to mostly press
releases and statements. The nomi-
nees create their own little support
group....They never get any commu-
nication from the White House or
the Senate.
In the final analysis, the lack of
prioritization of judicial selection by
the administration and its electoral
base was cause for frustration and
concern for a staff assistant to a
senior Democratic Judiciary Com-
mittee senator.
The right wing has, obviously, had a
thirty year project of making judges
a focus of what they want to do or
block.....This was a long term project.
Their base cares. They see it as a proxy
for abortion, guns, gay marriage. Our
side and our base doesnt understand
that the fate of health care is being
decided in the courts and it really
matters who the judges are. Its a real
oversight.
A particular sense of sadness was
articulated by an analyst from the
www.ajs.org Judicature 273
 Supreme Court nominations:
The empathy litmus test?
Dennis Brack
J udicial selection during the first two years of Obamas
term was highlighted by his opportunity to name
two new justices to the United States Supreme Court.
However, well before those opportunities arose Obama
signaled what he would look for in a potential nominee
in his chapter titled Our Constitution in his book, The
Audacity of Hope, where he outlined his vision of consti-
tutional interpretation and the proper role of judges.
The chapter was well reasoned and persuasively argued,
yet just a year later it was eclipsed by a brief remark then
nominee Obama made while on the campaign trail.
During remarks to Planned Parenthood on July 17, 2007,
he stated the following, which would come to define both
of his Supreme Court nominations:1
When Roberts came up, and everybody was saying, You know,
hes very smart and he seems like a very decent man, and he
loves his wife and [laughter] you know hes good to his dogs.
Hes so well qualified. I said, Look, thats absolutely true, and
in...the overwhelming number of Supreme Court decisions,
thats enough. You read the statute. You look at the case law,
and most of the time the law is pretty clear95% of the time....
But its those 5% of the cases that really count. And in those
5% of the cases what you got to look at it is: What is in the jus-
tices heart?
You know, Justice Roberts said he saw himself just as an umpire.
But the issues that come before the court are not sport. Theyre
life and death. And we need somebody whos got the... empathy
to recognize what its like to be a young, teenaged mom; the
empathy to understand what its like to be poor or African Ameri-
can or gay or disabled or old. And thats the criteria by which Im
going to be selecting my judges.
274 Judicature Volume 94, Number 6 May-June 2011
President Obama
had a working
list of about 40
names and Judge
Sonia Sotomayor
was at the top
of that list.
Thus began the national debate about an empathy
litmus test.
Obama was in office only three months when Justice
David Souter announced he would retire at the end of
the term. Originally, speculation centered on Justice
Ruth Bader Ginsburg retiring as she revealed her diag-
nosis of and subsequent surgery for pancreatic cancer,
a particularly aggressive form of cancer. But her positive
prognosis and rather quick return to the bench fore-
stalled any discussions of Supreme Court nominations.
As a result, many were surprised when Justice Souters
plans to retire were leaked to the press on April 29, 2009.
Although Justice Souter still was reasonably young by
Supreme Court standards (69), in very good health, and
had only served 19 years (a comparatively short tenure)
he had privately expressed a desire to return to his native
New Hampshire. By some accounts he also still was upset
by the Courts decision in Bush v. Gore.2
Only a select few people at the highest levels in the
White House and the Senate know when exactly Justice
Souter communicated to the White House his intention
to retire, though we now know the White House counsels
office was already at work on generating a list of poten-
tial nominees. By the time President Obama formally
acknowledged Justice Souters pending retirement on
May 1, 2009, he had a working list of about 40 names and
1. Barack Obama before Planned Parenthood Action Fund, July 17, 2007.
2. Jeffrey Toobin, THE NINE (New York: Doubleday, 2007).
Judge Sonia Sotomayor was at the top of that list. During
his remarks about the retirement, Obama reiterated his
focus on empathy; his remarks leave one wondering if he
had judge Sotomayor in mind when he said:3
I will seek somebody with a sharp and independent mind and
a record of excellence and integrity. I will seek someone who
understands that justice isnt about some abstract legal theory
or footnote in a case book; it is also about how our laws affect
the daily realities of peoples liveswhether they can make a
living and care for their families; whether they feel safe in their
homes and welcome in their own nation. I view that quality of
empathy, of understanding and identifying with peoples hopes
and struggles, as an essential ingredient for arriving at just deci-
sions and outcomes.
This time however, in light of the vacancy on the
Supreme Court, Republicans focused on the meaning of
empathy. What does that mean? asked Senator Orrin
Hatch on ABCs This Week, usually thats a code word
for an activist judge.4
Process
Obama, like every recent administration, ran Supreme
Court nominations out of the Office of the White House
Counsel. This undoubtedly compounded Obamas
already slow nominations process for the lower courts as
the Office of Legal Policy (OLP) at the Justice Depart-
ment typically is primarily in charge of directing the
process for the district courts and the Counsels office for
the appeals courts. However, due to OLPs staffing prob-
lems, as discussed in the main text, almost all judicial
nominations were being directed out of the White House
Counsels office and they presumably were put on the
back burner while resources were directed to filling the
vacancy on the Supreme Court. As one expert involved in
the process recounted:
The Supreme Court operation is customarily run out of the
White House, and at least with [the first vacancy] they were
doing that at a time when they didnt have the OLP up and
running so they werent able to off-source some of the
regular work of processing nominations while they focus on the
Supreme Court and that may have contributed to some of the
nominations not moving as quickly.
However the Supreme Court nomination process
impacted lower court selections, it is clear that the White
House was all engines go to fill the Supreme Court
vacancy. As one expert noted, The President did a very
good job with figuring out the Supreme Court picks
Clearly, he was not going to make the mistakes of previ-
ous administrations.
3. The Presidents Remarks on Justice Souter, The White House Blog,
May 1, 2009. (Accessed 5/27/2011, http://www.whitehouse.gov/
blog/2009/05/01/presidents-remarks-justice-souter).
4. This Week Transcript: Sens. Leahy and Hatch, abcnews.com, May
3, 2009. (Accessed, 5/27/2011, http://abcnews.go.com/ThisWeek/
story?id=7491153&page=1).
5. Peter Baker and Adam Nagourney, Sotomayor Pick a Product of Lessons
From Past Battles, New York Times May 28, 2009. (Accessed 5/28/2011,
http://www.nytimes.com/2009/05/28/us/politics/28select.html.).
6. Id.
7. Remarks by the President in Nominating Judge Sonia Sotomayor to the United States
Supreme Court. Office of the Press Secretary, May 26, 2009. (Accessed 5/30/2011,
http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-in-
Nominating-Judge-Sonia-Sotomayor-to-the-United-States-Supreme-Court).
First vacancy
Clinton, the last Democrat to appoint a Supreme Court
Justice, was roundly criticized for the handling of his
first appointment to the bench, primarily for how long
it took to make a final selection and for allowing the
leak of names to the press as trial balloons in an attempt
to gauge the level of support from interest groups and
key members of the Senate Judiciary Committee. The
Obama administration seemed determined not to follow
this same pattern and thus, secrecy was paramount.5
Although they invited outside interest groups to the
White House and consulted with members of the Senate
Judiciary Committee, they were very clear about their
overall message, get on board or get out of the way.6
President Obama announced his nominee-Second
Circuit Court of Appeals judge, Sonia Sotomayor on
May 26, 2009, almost one month after the vacancy
became official. (By comparison, Clintons first nomina-
tion took nearly three months). Sotomayor was selected
after Obama met with four potential nominees all of
whom were women. He later was criticized for not inter-
viewing even one man, but there was no real question he
would appoint a woman to the bench given the gender
disparity on the Court.
The potential nominees were: Judge Diane Wood, of
the Seventh Circuit Court of Appeals; Elena Kagan, Solic-
itor General; Janet Napolitano, Homeland Security Sec-
retary; and Judge Sotomayor, who was the only one of the
four Obama did not know personally. By all accounts the
President was actively involved in the selection process,
and by the time he met with each of the four women he
had read not only the extensive 60-70 page memoranda
prepared by the Counsels office, but also a substantial
portion of their original writings. Each of the potential
nominees was exceptionally well qualified, which was the
Presidents top priority. However, during her interview,
Sotomayors presence and personal narrative especially
impressed the President. On May 26, Obama introduced
Sotomayor, the daughter of Puerto Rican parents and
potentially the first Latina to sit on the high court, as his
nominee for the Supreme Court.
When introducing her to the country, Obama empha-
sized that he wanted his nominee to possess something
more than just exceptional qualifications or a view of
judging similar to his own:7
[A]s Supreme Court Justice Oliver Wendell Holmes once said,
the life of the law has not been logic, it has been experience;
experience being tested by obstacles and barriers, by hardship
and misfortune; experience insisting, persisting, and ultimately
overcoming those barriers. It is experience that can give a
person a common touch and a sense of compassion, an under-
standing of how the world works and how ordinary people live
After completing this exhaustive process, Ive decided to nomi-
nate an inspiring woman who I believe will make a great justice,
Judge Sonia Sotomayor of the great state of New York.
In Sotomayors case, her qualifications and experi-
ence were clear. She graduated summa cum laude from
Princeton University and received her law degree from
Yale Law School where she was an editor at the Yale
www.ajs.org Judicature 275
Law Journal. Before entering private practice she was an
assistant district attorney in New York for five years. Addi-
tionally, her view of the role of judges had satisfied both
Republican and Democratic presidents--George H. W.
Bush appointed her to a seat on the district court in New
York in 1992, and Bill Clinton elevated her to the Second
Circuit Court of Appeals in 1998. Notably, she had more
judicial experience on the federal bench than any justice
currently sitting on the Supreme Court had when first
nominated. Yet, she also possessed that intangible quality
Obama spoke of in his much quoted empathy speech
life experiences that would help her understand the trials
and tribulations of everyday Americans.
In terms of the success of Supreme Court nominations,
the first 48 hours after the announcement are critical
since it is the time when the public, and most senators,
become acquainted with the nominee. By all accounts,
the White House won the battle of the airwaves and cer-
tainly was well prepared in defending Judge Sotomayor
against attacks from the right.8 Since her qualifications
and experiences were difficult to malign, most of the
initial criticism of Sotomayor centered around charac-
terizations of her temperament, which seemed at odds
with the persona who accepted the Presidents nomina-
tion with grace and humility. Moreover, the confirma-
tion hearings that followed allowed for a more robust
evaluation of her disposition and by all accounts, she
performed beautifully.
The second line of criticism stemmed from a remark
she made during a speech she gave at Berkeley in which
she stated that she would hope that, a wise Latina woman,
with the richness of her experiences, would more often
than not reach a better conclusion than a white male who
hasnt lived her life.9 Coupled with Obamas continued
emphasis on empathy, critics claimed she would not be
able to apply the law with impartiality without the consid-
eration of the demographic or socioeconomic character-
istics of the parties before her.
Almost immediately both the President and other
spokespeople from the White House backed away from
her remark stating, Im sure she would have restated it
if given the opportunity and that her word choice was
poor.10 During the Senate Judiciary Committee hearings
the nominee addressed her remark directly by saying, It
was bad because it left an impression that I believed that
life experiences commanded a result in a case, but thats
clearly not what I do as a judge.11
This line of criticism, however, continued to play out
during the hearings and morphed into a discussion of
identity politics. During a particularly tense exchange
with Senator Jeff Sessions, Judge Sotomayor responded
to the claims by referencing her long tenure on the
bench, My record shows that at no point or time have I
ever permitted my personal views or sympathies to influ-
ence the outcome of a case.12
Outside interest groups including the Hispanic National
Bar Association and the Mexican American Legal Defense
and Educational Fund, assisted the administration in
276 Judicature Volume 94, Number 6 May-June 2011
countering the criticism from the right, by focusing on
her outstanding qualifications, rather than her ethnic
heritage. The president picked absolutely the best candi-
dateher education, her broad experience, and growing
up in New York City in a family of modest means dealing
with issues not currently reflected in the Court.13 This
put Republican senators in a difficult position. On the
one hand, Rush Limbaugh called Sotomayor a reverse
racist. But more deliberative Republican party strate-
gists cautioned senators against opposing the countrys
exceptionally well qualified, first Latina Supreme Court
nominee, for fear of alienating the growing Hispanic
voting population. This was especially important in light
of the 2008 election returns where Republicans lost
ground to Democrats with Hispanics.
A second vacancy
The Senate Judiciary Committee voted 13-6 to send the
nomination of Judge Sonia Sotomayor to the full Senate
(though Senator Lindsey Graham, the only Republican
on the Senate Judiciary Committee to vote for confir-
mation, remarked, this empathy idea makes us all Dr.
Phils).14 She was confirmed on August 6, 2009, by a
vote of 68-31. In the end, although nothing emerged
from the hearings that derailed her confirmation, there
were lessons learned about how future vacancies would
be handled. Senator Charles Schumer observed, this
hearing process has shown that my Republican col-
leagues will never support anyone nominated by Presi-
dent Obama, no matter how moderate her record.15
The observation would be tested in the near future when
on April 9, 2010, Justice John Paul Stevens, the longest
serving justice on the Roberts Court, announced his
intention to retire. This did not come as a surprise since
Stevens sent signals that he would retire, including not
hiring a full complement of clerks, which again allowed
the White House ample time to prepare.
In the retirement announcement, Obama praised
Stevens while hinting at qualities he would be looking for
in a successor:16
We cannot replace Justice Stevens experience or wisdomIll
seek someone in the coming weeks with similar qualities: an
8. David Stras, The Politics of the Sotomayor Nomination, SCOTUSblog, May
31, 2009. (Accessed 6/1/2011, http://www.scotusblog.com/?p=9712).
9. As quoted in, Lecture: A Latina Judges Voice, New York Times, May 14,
2009. (Accessed May 31, 2011, http://www.nytimes.com/2009/05/15/us/
politics/15judge.text.html).
10. Garance Franke-Ruta, White House: Sotomayors Latina Comment
Was Poor Choice of Words, washingtonpost.com, May 29, 2009. (Accessed
5/27/2011, http://voices.washingtonpost.com/44/2009/05/29/white_
house_calls_sotomayor_co.html).
11. As quoted in, Sotomayor denies bias in wise Latina remark she appears headed
for confirmation, barring a last-minute blunder, Associated Press, msnbc.com, July
14, 2009. (Accessed 5/27/2011, http://www.msnbc.msn.com/id/31904261/
ns/politics-supreme_court/t/sotomayor-denies-bias-wise-latina-remark).
12. Id.
13. As quoted in, Sotomayor Choice Puts GOP In a Bind, NPR, May 26,
2009. (Accessed 6/1/2011, http://www.npr.org/templates/story/story.
php?storyId=104547696).
14. As quoted in, Kristina Moore, Senate Judiciary Commit-
tee votes to recommend Sotomayor, SCOTUSblog, July 28, 2009. (Accessed
5/31/2011, http://www.scotusblog.com/2009/07/senate-judiciary-
committee-votes-to-recommend-sotomayor).
15. Id.
 Supreme court of the united states
The President was especially cognizant
of Justice Stevens role as consensus
builder when he chose Elena Kagan as his
replacement.
independent mind, a record of excellence and integrity, a fierce
dedication to the rule of law and a keen understanding of how
the law affects the daily lives of the American people. It will also
be someone who, like Justice Stevens, knows that in a democracy
powerful interests must not be allowed to drown out the voices
of ordinary citizens.
Although he did not reference empathy in his state-
ment, commentators and pundits continued to focus
on its potential impact on Obamas second nominee
for the Court. Once again, there was much speculation
over possible appointees, but given the close proximity
to the Sotomayor nomination, two on the list of poten-
tial replacements for Justice Souter were carried over
and placed on the list for the Stevens seat: Judge Diane
Wood and Solicitor General Elena Kagan. Added to the
short list were Judge Merrick Garland of the D.C. Circuit
16. President Obama Recognizes Justice Stevens Lifetime of Service and Offers
Condolences to Families in West Virginia, The White House Blog, April 9, 2010.
(Accessed 5/27/2011, http://www.whitehouse.gov/blog/2010/04/09/
president-obama-recognizes-justice-stevens-lifetime-service-and-offers-condo-
lences-f).
17. Tom Goldstein, On October 4, 2010, Elena Kagan Will Ask Her First Ques-
tion As A Supreme Court Justice, SCOTUSblog, February 23, 2010. (Accessed
5/31/2011, http://www.scotusblog.com/2010/02/on-october-4-2010-elena-
kagan-will-ask-her-first-question-as-a-supreme-court-justice).
18. As quoted in, Jeff Zeleny and Carl Hulse, Democrats Express Praise for Kagan;
G.O.P. Is Cautious, New York Times, May 10, 2010. (Accessed 5/28/2011, http://
www.nytimes.com/2010/05/11/us/politics/11judge.html).
19. Remarks by the President and Solicitor General Elena Kagan at the Nomina-
tion of Solicitor General Elena Kagan to the Supreme Court. Office of the Press
Secretary, May 10, 2010. (Accessed 5/30/2011, http://www.whitehouse.
gov/the-press-office/remarks-president-and-solicitor-general-elena-kagan-
nomination-solicitor-general-el).
20. Goldstein, supra n. 17.
Court of Appeals and Judge Sidney Thomas of the Ninth
Circuit Court of Appeals.
Replacing Stevens put the President in the unenviable
position of selecting a potential nominee that could
actually move the Court to the right. One analyst noted,
Liberals will recognize the significant prospect that the
Court will ironically become more conservative under a
Democratic President with this change in membership
insofar as Justice Stevens is the lefts leading strategist
and seemingly has the best relationship with Justice
Kennedy.17 This was different from his first nomination
where Obama replaced Souter, a Republican appointee
who, after his first few years on the Court, began voting
consistently with the liberal bloc. Thus by replacing him
with Sotomayor, the Court didnt move substantially
either way.
Additionally, although the vacancy came less than
nine months after Sotomayors confirmation, the politi-
cal climate in Washington had changed significantly due
to the fierce partisan battle over health care reform. As
Senator Jeff Sessions observed, public concern over the
direction and expansion of the Washington government
is different this time.18 It was within this context that on
May 9, 2010, President Obama introduced the nations
solicitor general Elena Kagan as his nominee to the
Supreme Court:19
Elena is widely regarded as one of the nations foremost legal
minds. She is a trailblazing leaderthe first woman to serve
as Dean of Harvard Law School . . . And . . . Solicitor General,
our nations chief lawyer representing the American peoples
interests before the Supreme Court, the first woman in that posi-
tion as well. And she has won accolades from observers across
the ideological spectrum for her well-reasoned arguments and
commanding presence. But Elena is respected and admired not
just for her intellect and record of achievement, but also for her
temperamenther openness to a broad array of viewpoints; .
. . her fair-mindedness and skill as a consensus-builder. These
traits were particularly evident during her tenure as dean. At a
time when many believed that the Harvard faculty had gotten a
little one-sided in its viewpoint, she sought to recruit prominent
conservative scholars and spur a healthy debate on campus.
And she encouraged students from all backgrounds to respect-
fully exchange ideas and seek common groundbecause she
believes, as I do, that exposure to a broad array of perspectives
is the foundation not just for a sound legal education, but of a
successful life in the law.
The Presidents remarks suggest that he was especially
cognizant of Justice Stevens role as consensus builder
when he chose Elena Kagan as his replacement.
Initially, and throughout the summer, Kagan did not
generate as much criticism from the right as Sotomayor,
but neither did she receive as much adulation from
groups on the left. Viewing this as their best and possibly
last opportunity for a long time to get a fire-brand liberal
confirmed to the Court, liberals were disappointed the
President did not choose a thoroughly and avowedly pro-
gressive nominee.20 By choosing a nominee without spe-
cific left-of-center credentials it appeared the White House
tried not to stir up groups either on the left or the right.
One expert involved with the process described Kagans
confirmation as less tough.
www.ajs.org Judicature 277
 Not that [Sotomayor] was in any danger of not being confirmed
but more stuff happened with respect to it and sort of on the
good side and on the weve got to defend side. The Kagan
[nomination] was a little less demanding in part because she was
so schooled in how to navigate all this and knew all these people
and had been very recently confirmed by these same people.
Since Kagan testified before the same Senate Judiciary
Committee just 15 months prior when she was nominated
to be Solicitor General, no one expected any revelations
about her character or background, and none surfaced.
Even though it is only a recent trend that Supreme
Court Justices have lower court experience, the fact that
Kagan had never before been a judge did prompt ques-
tions about her qualifications. According to Senator Jeff
Sessions:
Ms. Kagans lack of judicial experience and short time as Solici-
tor General, arguing just six cases before the Court, is troubling.
The public expects Supreme Court nominees to possess a
mastery of the law, a sound judicial philosophy, and a demon-
strated dedication to the impartial application of the law and
the Constitution. With no judicial opinions to consider, it will
be especially important that other aspects of her record exhibit
these characteristics.
Similarly, when she was vetted by the Senate for
solicitor general they focused on her inexperience as an
advocate.21 This criticism found no traction among the
press or commentators, especially since Sessions, its main
proponent, had no qualms about Harriet Miers lack of
judicial experience when W. Bush nominated her to the
Supreme Court. Although Miers subsequently withdrew
her nomination prior to the hearings, Senator Sessions
had commented to the media that:
My conversations with Harriet Miers indicate that she is a first-
rate lawyer and a fine person. Her legal skills are proven and
her reputation throughout the legal community is excellent. It
is not necessary that she have previous experience as a judge in
order to serve on the Supreme Court. Its perfectly acceptable to
nominate outstanding lawyers to that position22
This position undermined his later criticism of Elena
Kagan on the very same ground.
Another line of questioning involved Kagans tenure
as Dean of Harvard Law School during which she briefly
banned military recruiters from campus on the grounds
that the militarys dont ask, dont tell policy violated of the Court would raise the stakes considerably and
the schools nondiscrimination policies. Critics on the
right attempted to make the issue about the military,
painting her as anti-military, rather than anti-discrimi-
nation, but again the criticism gained little traction.
Although she received more negative votes than Soto-
mayor, Solicitor General Elena Kagan was confirmed
by a vote of 63-37 on August 5, 2010, and the President
described her confirmation in this way: [it is] a sign
of progress that I relish not just as a father who wants
limitless possibilities for my two daughters, but as an
American proud that our Supreme Court will be more
inclusive, more representative and more reflective of us
as a people than ever before.23
278 Judicature Volume 94, Number 6 May-June 2011
Future vacancies?
One true unknown is the question of what would
happen if another Supreme Court vacancy were
to arise during the 112th congressional session. Clearly,
the variables of timing during the session, proximity to
the election, and the identity of the nominee would have
a great deal to say about prospective confirmation. For
his part, Christopher Schroeder was somewhat optimis-
tic about the ability of a third Obama nomination to be
confirmed to the Supreme Court, even in the waning
days of the 112th:
I think opposition would draw negative attention if it tried to
hold up a Supreme Court nominee from an up or down vote,
I think weve gotten to the point where theres a pretty high
expectation by the public and theyd be quite surprised...if a
filibuster was attempted. So then you get down to the timing
and whether the Senate could run out the clock in some way if it
happened at the end of his term. I think they wouldnt like that,
but I think they would draw negative consequences if they just
tried to hold the seat vacant....If its a situation their base thinks
that thered be just enormous long term value to holding that
seat open so they could put a conservative jurist on the bench,
thenthey could build up a lot of pressure and make it politically
difficult. But I do think theres an aspect of the process that
might move some numbers among the independents who would
think, A lot of partisan bickering we can put up with. But the
Supreme Courts the one institution in government we still think
functions pretty well and theyre trying to mess with it now. I
think that would be difficult for them.
No names are being leaked to the press as of this
writing and any speculation about possible nominees
is pure speculation. Were a vacancy to occur, we might
see holdovers from the Kagan list appear on the new list
(Wood, Garland, Thomas). We might also see on the
list the distinguished former Dean of Yale Law School,
Harold Koh. President Obama seems to like to name
firsts and, if named, Koh would be the first Asian
American appointed to the Court. Coming after the Liu
failure, naming Koh, who is serving in the administra-
tion after being confirmed by the Senate, would under-
score the administrations commitment to diversity. Of
course a major variable not only would be the timing
of a vacancy but also who was being replaced. The
replacement of a justice on the more conservative wing
require deft handling in the selection and selling of the
nominee, given the ideological contentiousness in the
Senate and the potential impact on the future direction
of the Court. g
21. Brian Montopoli, GOP Reaction to Kagan Supreme Court Nomination
Stresses Lack of Judicial Experience,cbsnews.com, May 10, 2010. (Accessed May
31, 2011, http://www.cbsnews.com/8301-503544_162-20004582-503544.
html).
22. Liza Porteus, Bush Wants Miers Confirmed By Thanksgiving, FoxNews.
com, October 5, 2005.(Accessed 6/1/2011, http://www.foxnews.com/
story/0,2933,171177,00.html).
23. Remarks by the President and Elena Kagan at Reception Honoring Her
Confirmation. Office of the Press Secretary, August 6, 2010. (Accessed
5/31/2011, http://www.whitehouse.gov/the-press-office/2010/08/06/
remarks-president-and-elena-kagan-reception-honoring-her-confirmation).
left who noted, The real disappoint-
ment and loss in the context of a
president who is so ambitious pol-
icy-wise is an apparent, complete
disconnect between your policy ini-
tiatives and wanting to put up a fire-
wall of defense if you can get them
through. Assessing the nominations
process during the 111th Congress
from a political perspective, a liberal
group advocate added:
It was ... a broad strategic failure on the
White Houses part to focus on these
giant legislative initiatives, invest their
political capital there and then ignore
fighting over judges when the judges
are going to decide the fate of the
legislation. Why couldnt they do both?
In fairness to the administration,
and here the perspective of the White
House Counsels office would have
been helpful, the administration had
two Supreme Court vacancies to fill
and guide through the rocks and
shoals of the confirmation process.
This required a substantial invest-
ment of resources and the Supreme
Court appointments were of the
highest priority for the administra-
tion. ( See Supreme Court nomina-
tions, p. 274). That the filling of
lower court vacancies did not have a
high priority of course is the basis of
the criticism cited above.
Role of interest groups such names being ones that could
Before leaving the focus on nomina-
tion politics during the 111th Con-
gress, some focus is warranted on
the place of interest groups, particu-
larly since one noteworthy feature
of judicial selection during the W.
Bush years was the unusually central
role played by the Federalist Society.
At times, its members served in the
White House Counsel or Depart-
ment of Justices facets of the selec-
tion process.
According to Assistant Attorney
General Christopher Schroeder,
group participation in the process
is considerably different today than
during the W. Bush years:
We dont collaborate with them in the
way that the Bush administration did
or even Eldies [Eleanor D. Acheson]
OLP in the Clinton administration.
We encourage them to make their
influence known at the senatorial level
and to influence the names that come
to the White House. And I know there
have been meetings with Susan [Davies,
Associate White House Counsel] and
maybe even [White House Counsel]
Bob Bauer and some of the groups
interested in judges, but I havent
attended those.
Schroeder noted the stepped
up group activity that focused on
specific candidacies that have been
lightening rods for opposition, par-
ticularly that of Goodwin Liu, and he
suggested there are, perhaps, more
effective avenues for groups to focus
their efforts:
If I had a pet theme...almost since
the time I got here it was to encour-
age them to change the focus of their
publicity and advertising and speech-
making from the retail level of com-
plaining about how much someone
like Goodwin was being delayed and
focus more on the broader numbers.
To a certain extent, that has occurred
as, for example, in the flyer found on
the Alliance for Justice website pic-
turing all of the nominees waiting
for a vote late during the 111th
Congress.
A group advocate confirmed the
openness of the administration to
taking names of prospective nomi-
nees and placing them under con-
sideration, but success for groups
has depended, not surprisingly, on
easily have come to the fore without
the groups involvement. When you
give out names, for example, individ-
uals who are consideredmore pro-
gressive than Goodwin Liuthats
just not going to happen.
According to some analysts, the
unhappiness of many left-leaning
groups with the moderation of the
Obama nominees, has resulted in
a scenario where relationships are
strained between the administration
and their natural allies:
Democratic groups, instead of becom-
ing a partner, sometimes become a
third rail. There are some groups
trying to be like [what] the Federalist
Society was for Bush for the Dems, but
there is simply nobody to dance with.
This has, perhaps, had unhappy
consequences because, as one group
leader noted, the administration is
not taking advantage of the oppor-
tunity to play a coordinating role
among its supportive groups:
The more insular the Counsels Office
has been with respect to the nomi-
nations process...it doesnt have a
positive effect on trying to move nomi-
nees through....When you look at the
groups, I think there can be more
effective coordination with them....
They [White House Counsels office]
viewed them as problem makers. Its
better to...help coordinate them than
to let them go off and do their own
thing. ... I have never, in all the years
with Democratic administrations,
found one as defensive as this one.
They dont talk to you.
One group that, of course, the
administration has talked to is the
American Bar Association, whose
Standing Committee on the Federal
Judiciary was removed from the pre-
nomination vetting process during
the W. Bush years. Ironically, that
action tended to slow down the
overall advice and consent process
further since the Democrats on the
Judiciary Committee insisted on
receiving the ABAs report prior to
going forward with a nomination
hearing.
On balance, Assistant Attor-
ney General Schroeder thinks that
returning the ABA to its former role
is a beneficial change because the
ABAs rating provides significant
comfort to Senators and gives them
a way to eventually vote yes, even
if its somebody from a president
whose party theyre not sharing. The
idea that they are voting for highly
qualified people or even just quali-
fied people is a bonus.
The impact for opposition groups,
however, may be less congenial, as
noted by the Committee for Justices
Curt Levey. I think it makes it harder
for our side to organize because they
go so quickly to a hearing....I think
where we have fallen short is not
doing more before the hearings....
We just have not had a lot of time.
For groups in opposition to the
Presidents picks, such as Leveys,
major success really lies in facilitat-
ing the obstruction and delay of
nominees they oppose if and when
they are sent to the Senate floor.
From that perspective, Curt Levey
www.ajs.org Judicature 279
could claim some success for his
group for helping in the effort to
keep objectionable nominees from
receiving floor votes and being con-
firmed during the 111th congressio-
nal session:
I have been pleasantly surprised in
that we really targeted five lower court
nominees and none of them have been
confirmed....If you had asked me a year
ago I would not have predicted that all
five would have been stopped.
The trick to blocking nominees,
according to Levey, is to work on the
red state Democrats:
You stop people the way you stop
Chatigny and Liu, and McConnell and
Chen and Butler by having at least a
few red state Democrats that the leader
isnt sure they can depend on, who
actually go to the leader, [or] go to the
President and say, Dont put me in a
position of voting for this. Thats how
you do it. You dont do it by actually fili-
bustering....You stop people by having
dissension in the Presidents party....
Thats part of what our job is. To raise
the visibility of a bad nominee enough
that red and purple state Democrats
begin to feel some heat.
Confirmation:
Committee processes
During the dysfunctional judicial
selection confirmation processes of
the W. Bush and Clinton administra-
tions, acrimony and divisiveness, as
well as rule changes and manipula-
tions, prevailed across all phases of
Senate activity. In contrast, it is a
fair generalization to note that the
Senate Judiciary Committee facets
of the processes during the 111th
Congress offered, at least on the
surface, a picture of relative calm.
The Committee did its job, with the
greatest obstruction and delay of
Obama nominees occurring at the
floor stages of confirmation. Behind
such a generalization are layers of
nuance that shaped both committee
and floor activity and, at times, the
lack thereof. As noted by a senior
Judiciary Committee staff member:
I think things ran relatively...smoothly.
Weve had some success at the commit-
tee level. The flooris much more
a function of the caucus leadership
than any individual senator...During
the Clinton years I can remember
280 Judicature Volume 94, Number 6 May-June 2011
individual senators taking on particu-
lar nominees...I havent seen that here.
Its all been this systematic approach.
As we will explore below, system-
atic opposition could also be felt at
the committee level but it did not,
in any significant way, bring the pro-
cessing of nominees to a complete
standstill. Indeed, our interviews
revealed relative satisfaction on both
the Democratic and Republican
sides of the committee with the way
the congressional session unfolded.
A Democratic staffer observed:
I think Senator Leahys relationship
with Senator Sessions has been fine....
The Democratic staff working on the
nominations have done a great job
working with the Republican staff.
They disagree, but they get along. And
that hasnt been a source of difficulty,
of controversy, whereas back in the day
when we had other Chairmen, there
was often a procedural irregularity that
was so glaring, that it was, itself, part of
the problem.
Senator Sessions Minority Chief
Counsel for Nominations Danielle
Cutrona was in fundamental agree-
ment with this assessment:
I have actually had really good rela-
tionships [with the majority staff] and
weve gotten along really well....Were
at a huge disadvantage in votes on the
committee so we really dont have a
choice but to cooperate....Where we
can cooperate, why not cooperate? It
just fosters good faith.
Cooperation, of course, can take
place in degree and kind, and it would
be a vast overstatement to suggest that
the minority members on the com-
mittee simply went along with the
administrations picks. To the con-
trary, there was a pattern of regularized
and systematic opposition that had an
impact on the processing of virtually
all Obama nominees, but that impact
could be seen, in most instances, in
processing delay, not definitive and
resolute obstruction save for a handful
of identifiable nominees, most promi-
nently Goodwin Liu.
One of the areas of particular
concern to the Judiciary Committee
majority was the manner in which
scrutiny was taking place at the dis-
trict court level. For a staff aide
to a senior Judiciary Committee
Democrat this represented a sea
change in the process:
They have approached district court
nominees with the same exacting
inquiry standards that used to be
reserved for the Supreme Court and for
controversial circuit court nominees,
not even all circuit court nominees.
But now it extends to every lifetime
appointment. You hear Senator Ses-
sions talk about it, he talks about these
are lifetime appointments. Its not a
blank check, a rubber stamp.... It used
to be that district court nominees,
unless quite extreme, quite unusual,
were accorded a different path forward.
And now, thats changed.
When viewing the district court
No votes, another majority Judi-
ciary Committee aide commented:
A couple of them we know why. Theyve
said why. We think its totally wrong,
but there have been a couple of these
that have come out with party line
votes with no explanation. We show
up expecting them to be reported out
unanimously. Were actually surprised
when the no votes start coming in....
We have to look back at the questions
from the record to figure out what is
the basis....Its like reading tea leaves.
The magnitude of this change
appears to have been substantial.
According to Judiciary Committee
data, of the approximately 2100 Dis-
trict Court nominees processed since
1945, only five were reported out on
a strict party line vote, with four of
the five occurring during the 111th
Congress.
Danielle Cutrona took strong
exception to any notion that dis-
trict nominees should be given a
pass from committee scrutiny and
she strongly articulated and shared
Senator Sessions viewpoint:
Each nominee is assessed on his or her
own merits regardless of the position
in the court system to which they are
nominated because this is a lifetime
appointment.... They [district court
judges] deal with serious issues. They
deal with Proposition 8, they deal with
dont ask, dont tell, they deal with
terrorism cases, health care, and thats
my bosss view of it....When President
Bush was in power and you didnt want
to do this and you just rubber stamped
District Court nominees, thats your
problem.
Whether the focus was on district
or circuit courts, for its part, the
 jay mallin
I think Senator Leahys relationship with Senator Sessions has
been fine, said a Democratic staffer.
majority committee staff felt guided
by an imperative to move nominees
and get the work done:
Chairman Leahy did not want to do
the tit for tat on nominations....The
Chairman takes very seriously the need
to provide judicial resources for courts,
and court after court after court dont
have enough judges.. . . We acceded to
the Republican request not to overload
hearings, not to put multiple circuit
nominees on a hearing, to have hear-
ings only once every two weeks, have
only five nominees during a hearing.
One particular Republican request
that appeared to be accommodated
in committee was to go slow with
the Goodwin Liu nomination:
After the President had nominated
Liu there was a discussion about when
to hold a hearing....The Chairman...
acceded to a Republican request to
not proceed immediately to Goodwin
Liu. Did that twice....It wasnt like the
Senate got the nomination and held
the hearing within 48 hours....People
took advantage of their rights. I dont
think that a single Republican senator
could say that when the committee first
considered this nomination they did
not have sufficient time to prepare....
And they had rounds and rounds....
They had multiple rounds of follow-
up questions. He took 500 written
follow-up questions which is similar in
number to Supreme Court nominees.
With Liu and virtually all nomi-
nees, the committee majority simply
6. This is indeed what happened at the Decem-
ber 1, 2010, business meeting of the Senate Judi-
ciary Committee. See the webcast available at the
Senate Judiciary Committee website.
the characterization of these prac-
accepted that the process would have
its own rhythm and pace, one that
was somewhat slower than what they
would have preferred, but one that,
in due course, would bring com-
mittee closure on the vast majority
of nominees and would do so in a
manner that allowed the committee
to continue to operate efficiently.
Holding over a nominee was often
seen by the majority as an effective nui-
sance tactic in that, as one aide noted,
it had the ultimate impact of simply
stretching out the Senates calendar
and piling up nominees towards the
end of the congressional session:
The reason why we have so many left
is because right before Thanksgiving
break we had a ton of folks who were
on the agenda who got held over two
weeks. Not a week, two weeks because
of the Thanksgiving break. But they
were on the agenda then, having been
on the agenda before the election
recess. These were September hear-
ings whose files were completed, who
were ready for committee consider-
ation before the election recess in
October, but since our normal day of
meeting is Thursday, we didnt meet
that day because the Senate recessed
on Wednesday night....So they were on
our agenda, six, seven weeks later we
finally have the meeting, but they have
to hold them over for two more weeks.
Does that make any sense?
Describing the structured com-
mittee routine as they were nearing
the end of the congressional session,
a majority committee staff member
added:
What youre going to see tomorrow,
theres going to be a vote tomorrow....I
think the committee could be pre-
pared to report almost all of them. But
what youll see instead is Republicans
will take advantage of the rule and
say, Oh, but four of them we havent
held yet, so of course were going to
take advantage [of that]. If this were a
football game, you have to use all your
time outs. You dont have to. They do
as a matter of course....But as you get
towards the end, and youre disadvan-
taging people for no good purpose,
theyre still doing it.6
Danielle Cutrona took issue with
tices having no good purpose.
Senator Sessions felt very strongly that
this practice was critical to allow the
public ample notice that a nominee
was on the Committees agenda and to
allow for public comment.
It was, ultimately, frustration with
not getting anything in return from
the Republican caucus for the way
the minority was treated in commit-
tee that most rankled the Democrats.
To them it appeared that:
all the regularity thats been built
into the process to protect them, to
protect their rights, to ensure that the
administration and...the Democratic
Chairman are not overreaching in the
way other chairmen have been, theyve
been willing to take all of those courte-
sies, and take advantage of all of that
largesse, but theres nothing in return.
Acknowledging their relative
success at the committee level and
ability to get nominees sent to the
floor in due course, the question
remained for the majority, Is that,
you know, a good accomplishment?,
when the perceived response on the
floor is, Now Im going to do the
hostage taking.
For some group advocates the
answer was that the committees
accomplishments were not enough
and that committee leadership
should have played a more aggres-
sive role when names were sent
forward to the floor to champion
the nominees. One noted:
One side is playing with brass knuckles
and the other side is giving
fifteen minute speeches about the
vacancy rate....You dont bring a library
book to a knife fight....Those guys fight
and ours are very weak, very weak.
www.ajs.org Judicature 281
 A TALE OF TWO NOMINEES:
David Hamilton and Goodwin Liu

diego radzinschi
The Presidents first selection, David Hamilton, successfully
was seated on the Seventh Circuit Court of Appeals.
Goodwin Liu (right) was not confirmed.

T here are two nominees whose advice and consent jour-

neys best represent the administrations early hopes
for smooth success in the judicial selection process and
its palpable disappointment as the 111th congressional
session drew to a close. The two are the Presidents first
selection, David Hamilton, who successfully was seated
on the Seventh Circuit Court of Appeals. The second was
Goodwin Liu, whose subsequent nomination to the Ninth
Circuit provoked the greatest controversy among all
Obama picks, languished through committee processes,
and was never called up for a floor vote in the Senate,
By all accounts Hamilton, a veteran of a decade and a
half of district court service, was seen to be a shoo in, a
symbol from the Obama camp of what the Republicans
could expect from the President in his nominations.
Hamilton was a widely respected, low-key and low-profile
nominee who enjoyed home-state support from senior
Senate Republican, Richard Lugar, and was a close rela-
tive of much beloved retired Democratic member of the
House of Representatives from Indiana, Lee Hamilton.
Obamas first nominee was seen by many as a brilliant
choice, offering a sharp contrast both in politics and
style to the first 11 nominees, all to the courts of appeal,
introduced by President W. Bush in a Rose Garden cer-
emony. Among the Bush eleven were some of the Presi-
dents most controversial picks, some of whom would
never be confirmed. In contrast, Hamilton was nomi-
nated with little fanfare and as a lone nominee without
stable mates, an announcement of the nomination sub-
stituting for a Rose Garden introduction.
In characterizing the Hamilton nomination, a senior
Democratic committee aide noted:
This is very much in the spirit of nominees that Bayh and Lugar
had sent up for Bush that were also successful stories....Thats a
signal. Instead of sending up what Bush did, an ideological slate,
Im sending one that Republicans like.
When the nomination faced a lengthy delay in commit-
tee processes and, then, a tepid filibuster effort on the
floor before Hamilton was eventually confirmed, this staff
member was astonished. Filibuster? I mean this guy is a
moderate. On a left right scale of one to ten hes maybe
a four. Filibuster? And that sort of told the tale.
Recall that this nomination was made after the Repub-
lican caucus had issued its public letter placing the Presi-
dent on notice that if he did not appropriately consult

282
282 Judicature Volume
Judicature Volume 94,
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Number 66 May-June
May-June 2011
2011
with its senators, they would block his nominees.
So you could argue that the President reads that letter and says,
Alright, well heres my first pick. Its one with the support of
the senior longest serving Republican Senator, Dick Lugar. If it
meets your criteria for doing this, Im going to make that pick
as a symbol of working with you. Of showing a different way
forward on this. And Im also not waiting until I have a slate of
nine or ten. Im doing the one that Ive got first and ready. And
we say Great, what a good pick. This should be an easy one to
set the tone with. So they say Were going to filibuster if were
not consulted. They are consulted and they filibuster anyway.
From the perspective of Danielle Cutrona, Judiciary
Committee Minority Chief Counsel for Nominations, a
different sort of signal was being sent by the President.
There were other nominees that were left at the end of President
Bushs term that President Obama could have renominated,
extended an olive branch, much like President Bush did at the
beginning of his term and he didnt do it. And I think that sends
a signal....If they really thought he was a moderate, bipartisan
consensus pick then theyre more out of touch than I thought
they were. There was so much in his record that was objection-
able to so many people.
Interestingly, Cutronas characterization of the Ham-
ilton nomination did not fly with Curt Levey, a like
minded conservative opponent of the President:
I think we all sort of agree now, to be honest, that he wasnt that
objectionable any more than he was first. I think Obama thought
he was doing something smart by nominating him first, but cer-
tainly for Hamilton, however, it wasnt a good thing.
The Liu nomination
If Hamiltons problems resulted from being first, Goodwin
Lius came about because of being highly celebrated and
highly anticipated, both by the left that revered him and
by the conservative right who saw in him a cause celebre,
a nominee to oppose as strongly as, many years earlier,
the Democrats had opposed W. Bush nominee Miguel
Estrada (one of the first 11) for a seat on the D.C. Circuit
Court of Appeals. Like Estrada, Liu was seen as an ethnic
nominee whose star could rise all the way to the Supreme
Court if he were successful in attaining this appellate
judgeship. The parallels to Estrada were not lost on the
Asian American Justice Centers Vincent Eng:
When is the first Asian American going to be on the [Supreme
Court] bench?....The list of potential nominees is still very
thin....Obviously, individuals like Miguel Estrada, people feel
that...Look at his age, this is someone that could be on the
Supreme Court. And we know thereve been no Asian Ameri-
cans there. Goodwin has all those years, so....Miguel Estrada was
the classic example of where Goodwin is.
The reasons the Obama base longed for a Liu nomina-
tion went well beyond his ethnicity and to the core of his
judicial philosophy, particularly in a setting where the
administrations choices to date could best be character-
ized as moderate. Remarking on how Liu would differ
from the norm, a senior Democratic Judiciary Com-
mittee aide commented that the President, has stayed
away from ideological picks. Goodwin Liu is...the only
example you could find who is somewhat akin to any of
the first Bush circuit picks. As Nan Aron put it:
There has been very little recruitment of individuals who can be
counters to the Posners, the Easterbrooks on these Circuits. The
only nominee that fits in that category is Goodwin Liu.
Indeed, as one long-term participant observer of judi-
cial selection politics concluded, Liu was kind of another
generations academic or intellectual hero....They worship
him over at the American Constitution Society.
For some, in addition to the comparison to Estrada,
another appropriate analogue to the Liu nomination was
W. Bushs choice of conservative law professor Michael
McConnell. As a Committee aide put it, like McConnell
before him, Liu should not be viewed as the worst of
the worst by the opposition but, rather, note should be
taken of his intellectual strength and bipartisan support,
particularly among legal academicians, as had been the
case for McConnell. Characterizing Liu on a one to ten
scale, he was:
not on the eights or nines, not the Janice Rogers Browns but
the Michael McConnells. The ones that did get through....Michael
McConnell...is almost the exact analogue to Goodwin Liu. He
wasnt a nominee that a Democratic president would have picked.
But it was one that got the right kind of deference.
The logic of a Liu nomination for the President can
be easily stated as it was by a senior Judiciary Committee
staff member:
He does and did have the support of both his home state sena-
tors. He is for a vacancy from his own state. He does have tre-
mendous credentials. He is being nominated to be a judge on
the 9th circuit from California. You can vote against him. But its
hard to say that this was somehow so out of the ordinary that it
should create a backlash of some sort.
The aide proceeded to suggest how a nomination of
this type would have been handled back in the day
before judicial selection politics became so highly parti-
san and divisive:
The two leaders would have said to each other, Okay, my guys
like Goodwin...most of your guys dont....How much time do you
need? Do you want six hours? Do you want ten hours? Oh, no,
we have to filibuster him. Okay, well can we take these three days
then, and well talk about him for awhile. But then if he gets sixty
we can vote on him afterHow much more time do we need?
And there would have been some work out, some accommoda-
tion, instead of a no, nay, never, not on your life....Were going
to use every technique we can to send it back and were going
to be filibustering every one up to that one to prevent from ever
getting to that one. I mean if they truly oppose the guy and
think he is not qualified to be a judge, stand up on the Senate
floor and say why not. And vote no. Vote no. I have seen no
willingness to do that.
What did happen was, of course, quite different. A
hearing was delayed by Chairman Leahy two times and,
when held, included multiple rounds of questioning and
500 written follow-ups:
Then they voted the way they voted, which is their right. And
then they insisted that the nomination be sent back to the Presi-
dent. It came up again. It was called up again in committee.
They voted again.
www.ajs.org Judicature 283
www.ajs.org Judicature 283
 By the end of the 111th Congress, Lius nomination
had yet to be called up to the Senate floor, nor had it
been put to a cloture vote to end debate, both of which
constituted major disappointments for the Presidents
left leaning base. In this sense, the McConnell analogue
breaks down. As argued by Vincent Eng:
I think that the standard that Goodwin Liu was put up on was
a lot different than the past academics. If you look at...Mike
McConnellI dont think it was as exhaustive....Goodwin
has set a new standard. I think his questionnaire rivals that of
Supreme Court Justices questionnaires.
There was ample reason to anticipate the furor the
Liu nomination would cause in Republican ranks. As
Danielle Cutrona characterized it, Liu was a radioac-
tive pick....I have to believe the White House knew there
would be strenuous opposition to him.
Missteps and errors
That was undoubtedly the case. Nevertheless, even grant-
ing such opposition, there were several missteps in the
Liu nomination process that made matters undeniably
worse. These included the timing of the nomination, the
role of the internet in Lius vetting process, the process-
ing errors and internal situation at the Office of Legal
Policy and the administrations aloof posture towards the
nominee. Even in such circumstances, Lius nomination
might have survived a cloture and confirmation vote in
the heavily Democratic 111th Congress, but such a vote
would never be taken. Instead, a perfect storm of strate-
gic errors and the press of events destined the nomina-
tion to languish in the congressional session.
Had the nomination been made in the administra-
tions first year, it could, perhaps, have been successful
in the aftermath of electoral victory and the honeymoon
for the President. Particularly in a package or slate of
nominees, each one might have stood some chance
because the Republicans could not block them all. Even
if Liu were blocked, larger absolute numbers would likely
make it through. But this was not how the nomination
played out.
Rather, Liu was initially nominated in late Febru-
ary 2010, more than a full year after the President had
taken office and after he had encountered difficulty with
some of his nominees. Lius nomination was partnered
with one other circuit pick, Robert Chatigny, the only
other Obama appellate nominee explicitly targeted by
the Republicans during the 111th Congress. This duo,
lacking cover, made them both easy targets from the
outset. As noted by Vincent Eng, When you roll out
Goodwin Liu you want to roll him out with a number
of other candidates so hes one of many stories. Both
the timing of the nomination itself and the Chatigny
pairing would seem to be, in retrospect, major process-
ing mistakes that could readily have been anticipated
and avoided.
Several explanations, all with a political edge, have
been offered for the poor timing. Christopher Schroeder
explained that timing is:
284 Judicature Volume 94, Number 6 May-June 2011
exclusively the purview of the decision-makers in the White
House and in the leadership in the Senate. Senator Reid was
involved in a fight for his seat and I think maybe calculated that
having a highly visible extended floor debate about a judge who
is going to be painted to be a very liberal fellow in the year the
Tea Party ascended wasnt going to gain him votes.I dont
think he was very eager to bring it forward. And I think the
Presidents people probably made the same kind of calculation,
that this would not be helpful for the people who were up [for
reelection] in the Senate so they decided not to.
Several other sources indicated that Liu:
was ready months before they nominated him....Within the
White House there was a discussion at the senior staff level and
Rahm [Emanuel] was fighting against it....so that delayed the
process a long time andhad a serious effect because if you go
out early, you dont run against this block at the end of the
Congress.
The Liu nomination also suffered from the broader
consequences of the nature of public vetting in a highly
articulated internet age. In short, there was an informa-
tion glut surrounding the nominee and an opposition
that was characterized as playing the gottcha game
in trying to bring him down. As a Judiciary Committee
Democratic staff member observed:
One of the...things that has shifted and I think were still trying
to figure out is how to handle [nominations] in the internet
age, where everything is available online, where lives are lived
online....Theres a whole different level of information. There
was a time when the Committees information gathering process
and questionnaire was the way that these things were found.
Now its like this weird race for completion, and if one speech
somewhere, even if it was said ten other places, was missed, then
there is some allegation....Theres a gotcha game that goes on
with these even though the amount of information that we ask
for is so extensive and there is so much there that when you
get the file and you have a chance to review it, it really is such
a complete thing...any information that would be relevant to a
nomination....Its not like theres stuff being hidden yet thats
how its sort of treated.
This characterization aptly describes some facets of
the Liu nomination where the nominee failed, in some
instance, to take note of multiple similarly themed speeches
given in several iterations. The blame for this, according
to a long-time judicial selection player, is jointly shared by
the candidate himself and the Office of Legal Policy where
the vetting of the candidate takes place:
Candidates for judicial appointments run the gamut of every
human being on this planet. Theres some people who are going
to be absolutely meticulous about taking in everything that you
were explaining to them about the requirements and the ques-
tionnaire and what it means when it says every is every down to
every tweet...And there are other people who are probably going
to turn out to bevery very good judges....You could imprint
this, you could tattoo it on them, you could have it recycling in
their room in [their] sleep and they wouldnt grasp it....People
make mistakes. They overlook things or they make the mistake
of asking the...nominee and taking their answer at face value.
Here, it appears that the OLP vetting effort missed
some of the repeated speeches and some other materi-
als that were far from earth shaking. Even shaking Liu
upside down by his cuffs still did not produce all of his
writings. Then the Republicans found them and all hell
broke loose. As Nan Aron observed, the discovered
documents were comprised of the kind of information
that Bush nominees were never asked to provide or had
to provide underscoring, again, the implications of the
internet age in the judicial selection processes.
Danielle Cutrona took strong issue with the charac-
terization of the missing materials in the Liu file. In her
view, extremely controversial materials were missing
from the file.
Through due diligence, committee staff (and a handful of blog-
gers) uncovered more than 117 missing items.that is hardly
one missing speech. There was and has been no comparable
omission from any other nominee put forward.[M]any of the
omissions contained statements that were deeply concerning, It
also signaled a lack of seriousness and a lack of respect for the
advice and consent process.
The hell that broke loose impacted both the nominee
himself, as the Republicans skewered Liu for not being
completely forthcoming and, as well, the operation and
future role of the Office of Legal Policy in the Obama
administrations judicial selection processes. Indeed, as
Danielle Cutrona noted:
Once the Goodwin Liu issue happened...it looked really bad.
There were obvious consequences in OLP because of that. And
we started receiving things from the Counsels Office instead.
We started dealing with the Counsels Office directly in some
things.
Our portrait of what transpired at OLP is gleaned from
numerous sources, some of whom spoke off the record.
Clearly, there was a lot of blowback from the Hill, so
that Attorney General Holder got involved, and that the
President was both fully informed and greatly concerned.
In short:
everybody was outraged....People in the White House got all
upset and I gather that went all the way to the top, and it was
communicated from the top there to the top of the Department
who got all wound up because everybody in the White House
was all wound up and...demanded that the responsible heads roll
and, frankly, there was only one reasonable head.
Taking the fall was Jon Meyer, a Deputy Assistant Attor-
ney General who was reassigned in a personnel action
that, by multiple accounts, was exacerbated by a close
colleague who blamed Meyer for all of the vettings short-
comings. This transpired during the period when Chris-
topher Schroeder was being confirmed as the Assistant
Attorney General overseeing the OLP and accomplished,
reportedly, without his participation or knowledge. As
one close observer of the scene opined:
People make mistakes....To react in this crazy, reactive way...only
hurt themselves....All of a sudden, boom, people from on high
are rearranging [Schroeders] office...and the staffing of one of
the two critical functions of the office.
As a consequence, the newly seated Schroeder inher-
ited the task of reconstructing OLP and its work and
regaining a central role in judicial selection politics. The
office began to emerge from the damage that the Liu
affair had done towards the end of the 111th congres-
sional session.
The Obama administration, as noted, kept its distance
from most judgeship nominees once their names were
sent to the Senate. That approach was taken to a new
level in the case of Goodwin Liu in the 111th Congress.
One Liu group advocate asserted that:
It was clear from the minute he was nominated the administra-
tion was going to walk away from him as fast as they could. And
you get the impression that the only reason they did this was to
pay lip service to liberal organizations. And there were a couple
of American Constitution Society lawyers who were working in
the White House....This is the kind of nominee that the Bush
administration would go all out and fight for. And even if they
lost, theyd keep fighting. Theyd bring him back or do a recess
appointment.
Another group advocate agreed, noting the difficulty
in generating active support from Diane Feinstein, one
of Lius home state senators, since the White House was
largely silent:
Feinsteins perspective on this...is...I have [District Court
nominee] Ed Chen. You are now doing Goodwin Liu. This is
your nominee. Goodwin Liu is great. White House, what are you
going to do for me to assure that he is confirmed?....Well I can
see from a political perspective, if the White House is not going
to carry the water on their own nominee, why should she if she
wasnt really involved other than, Have dinner with the guy?
In the final analysis, the Goodwin Liu episode resulted
in many lessons. For one, as a participant in judicial
selection processes suggested, They spent so much time
on Goodwin Liu and a couple of these people to the
exclusion of people they could have gotten through.
Still, to the question posed near the end of the 111th
Congress, Is Goodwin Liu going to become a judge?
Danielle Cutrona was quick to respond, Thats up to
the President, I guess. This suggests that Liu, whose
renomination ultimately failed after resubmission in the
112th Congress on a denial of cloture, might have been
confirmed late in the 111th if it had been a top admin-
istration priority and a cloture vote were called. Vincent
Eng of the Asian American Legal Center, shared this
view. Im confident that he has sixty votes. I think its all
about scheduling floor time....If the White House fails to
make it a priority, its hard to get there. Prophetically,
Eng added:
If they feel its difficult to get sixty votes for Goodwin Liu in the
111th, its going to be that much more difficult in the 112th....
So hed actually rather go down to a failed cloture vote than to
[never have the vote] because thatis the Democrats defeating
themselves....
On May 25, 2011, Goodwin Liu requested that Presi-
dent Obama withdraw his nomination. g
www.ajs.org Judicature 285
Senate floor action
While left leaning groups and par-
ticipants in the committee stage of
the process both lament the rela-
tive lack of progress in confirming
judges through the congressional
session, the minority Republicans
placed such a failure squarely on
the majority and not their own floor
actions. Beyond the five most contro-
versial nominees targeted for Repub-
lican opposition in the congressional
session, (appeals court nominees
Chatigny and Liu, and district court
nominees Butler, Chen, and McCon-
nell) it was Danielle Cutronas view
that virtually all other nominees:
could move in regular order if the
majority leader decided to make that
a priority on the floor. Now maybe
this is the same reason that the Obama
administration has not made it a prior-
ity to send us the nominees, that the
very aggressive legislative agenda, thats
clearly the priority for Senator Reid.
Cutrona mapped out a process
through which more nominees
might have gone forward to floor
votes:
If Senator Reid wants to bring up
a nomination, his floor staff goes to
Senator McConnells floor staff...and
then we come to a timeframe, and
thats how many judges have pro-
ceeded through the process in this
Congress....A lot of times its just
Senator Reids not coming to us and
asking for time agreements, or can we
UC (unanimous consent) these? Its
just not happening.
More to the point, in Cutronas
view, the kinds of negotiations that
might have led to greater confirma-
tion activity have not been the order
of the day:
If Senator Reid had gone to the Repub-
lican leader and said, we want to
move these three judges, and Senator
McConnell says, well, you know, we
really want a vote on this, and Senator
Reid says no. That could happen....It
really hasnt been Senator Reids prior-
ity to move these people.
Most broadly, Cutrona noted that
Democratic cooperation on other
legislative concerns beyond judge-
ships per se did not help the climate
for moving judicial confirmations
forward:
286 Judicature Volume 94, Number 6 May-June 2011
The majority leader sets the agenda
and he decides what his priorities are
and what his caucus priorities are
going to be....And everything is all
tied together....If you look throughout
this congress, Republicans felt jammed
on big ticket items like health care....
Theres not going to be an air of coop-
eration floating around the Republican
cloakroom. So if youre going to tell
them that...Youre not going to be
able to offer any amendments, youre
not going to get votes on amendments,
youre not getting any debate on this,
why would they be willing to agree on
anything?....There are ways to move
nominees that have no opposition
without making it painful for every-
body....This is not just about judges, its
about the entire schedule, the agenda
on the floor....Its all interrelated.
In a setting where the judgeship
issue was not an Obama priority
and where Senator Reid had bigger
legislative fish to fry, coupled with
his own re-election concerns and a
relatively non-aggressive committee
chair sending nominees forward, as
Curt Levey underscored, there are
ample reasons for Reid not making
it a high priority.
The end result, as Nan Aron sees
it, is that the Republicans have:
been allowed to get away with it for
two years....The majority party isnt
forcing them to vote...holding them
accountable when they vote against
nominees or even vote cloture....This
should have been easier.The Senate
is in the hands of the Democrats. And
for two years weve hadpeople say,
Whats the holdup?....Why isnt there
more action?....There is no justifica-
tion for these votes not taking place.
The holdup has been seen to
be part of a well-articulated legisla-
tive strategy for opposition devised
and implemented by the Republican
caucus leadership and, throughout
the 111th Congress, it was a plan
that worked extremely well to limit
the numbers of confirmed judges.
Evidence of such a strategy could
be seen in the relationship between
committee and floor action as
viewed through the eyes of a major-
ity committee staffer. I cant think
of an Obama judicial nominee that
did not receive the support of the
Republican home-state senators and
yet they turned and then wont send
them through.
A case in point was the Presidents
first circuit court nominee, David
Hamilton, who had strong support
from his home-states Republican
Senator Richard Lugar, yet, never-
theless, had to overcome opposition
emanating from elsewhere in the
Republican caucus. (See A tale of
two nominees, p. 282.) Christopher
Schroeder characterized the opposi-
tion on the Senate floor as having
moved from the traditional targeted
kind, aimed at specific nominees, to
a more generic form:
I think weve moved from retail opposi-
tion to wholesale opposition....When
our nominees do get floor votes, the
ones who went through the commit-
tee without opposition are confirmed
without opposition...Weve had 30 dis-
trict court judges confirmed. Weve
had one No vote cast among the
entire 30. Everybody else has been
97-0 or by voice vote and yet its been
extremely difficult to move nominees
through. Not so much in committee
where the Republicans will exercise
every procedural tactic they have. All
of the judges have been held over the
automatic week that any Senator on
the committee has....The movement at
the floor stage has been extremely slow
and its not, I believe, because of any
individualized opposition. Its more
of a We just dont want to confirm
judges.
For Nan Aron, the fact that the
Republicans are holding up votes
on nominees they support suggests
that, it could simply be a matter of
holding enough seats for a future
Republican to fill. In effect, all
nominees are seen as fungible and
there is a linking of those who are
viewed as non-controversial with the
controversial ones. A majority Judi-
ciary Committee aide characterized
this as a fundamental change in the
process. In the past:
Democrats made an effort to keep
that separation so that they could make
it clear that their opposition was a prin-
cipled opposition to some handful of
nominees. It wasnt obstruction. So the
presence of one nominee that some on
the other side consider controversial,
the idea that that should then be a
cause to hold up every other nomina-
tion is something that is new.
Such an approach was character-
ized by Aron in its broadest light. I
think their goal, as stated by Mitch
McConnell, is to bring Obama down.
And what better way to weaken the
President than to hold his judi-
cial nominees and other executive
branch nominees hostage?
Several different tactics were used
to delay floor action in the Senate on
judicial nominees during the 111th
Congress, specifically, the persistent
Several different tactics were used
to delay floor action in the Senate
on judicial nominees.
denial of unanimous consent to a
floor vote on a nominee, the resort
to holds on nominees placed by indi-
vidual senators, and, when played
out to the end game of opposition,
utilization of the threat of filibusters
and the necessity for cloture votes to
bring a nominee to the floor. Partic-
ularly irksome for the Democrats was
the minority leadership-led refusal to
consent:
That doesnt mean somebodys sitting,
holding Mary Murguia or Scott Mathe-
son or Albert Diaz....Theyre simply
holding the entire slate....And one of
the things we keep hearing which is
just wrong is Republicans saying, The
leader could just call these up. Yet
whenever a Democratic senator has
sought unanimous consent, not even
for an immediate vote, but for debate
and a vote to be set by the leaders
they objected to those UCs....So it
was obviously the strategy to bottle all
these up and...essentially, hold them
all hostage.[The big difference from
the past, a giant escalation in the con-
firmation wars, was] the systematic
delay on the floor extending to con-
sensus, non-controversial nominees.
When such delay occurred, the
majority could only resort to a call
for a cloture vote to end debate in
the absence of unanimous consent
and try to bring the nominees to
the floor. According to the Com-
mittee for Justices Curt Levey, what
was occurring was simply a delaying
tactic on the non-controversial nomi-
nees with no real intention of the
necessity of cloture to eventually get
them through:
You arent seeing filibusters, youre
seeing not granting a unanimous
consent, and then Reid hasnt wanted
to utilize [major] floor time on it and
thats what I mean about priorities.
Those people will all be confirmed
eventually.
Levey indicated that it was really
the five aforementioned nominees,
who have a good reason to think
they are not going to be confirmed.
The overall pattern of Republi-
cans refusing to grant unanimous
consent, in Leveys view, fits into the
tit for tat nature of contemporary
judicial selection politics:
It probably is a feeling that, look, we
dont have enough to filibuster, but
why should we make it easy for you
after what you did during eight years of
Bush? Again, I think the vast majority
of them will get confirmed, but Repub-
licans are in no hurry.
In addition to the routine denial
of unanimous consent, individual
Senator Durbin sits on the Judiciary Committee with Senator
Whitehouse who suggested that once you take the fight to the
district court nominees it will be difficult to return to past standards
of deference and reciprocity.
senators can place specific holds on
nominees to keep them from going
forward to the floor. The implica-
tions of such a hold, as Christo-
pher Schroeder explained, was their
ability to morph into something con-
siderably more problematic for the
nominee:
The mechanism that makes a secret
hold viable or tough to get around
is the filibuster threat that lies one
step away from it....McConnell saying,
Theres somebody in my caucus or
more than one person who is going to
oppose this and will object to moving
the nominee and youre going to have
to file a cloture petition. The secret
nature of it is frustrating but its not
as debilitating to the process as...when
the caucus is simply opposing nomi-
nees for the sake of slowing down the
process....Hes not trading anything
for releasing the holds. So its not the
secret hold to me that is sort of debili-
tating. Its simply the operating modali-
ties of the Senate which require either
unanimous consent or a filibuster fight
to proceed to anything.
Earlier, we discussed the exten-
sion of opposition at the committee
level to district court nominees and
it is also important to recognize that
division over the federal trial courts
was, in several instances, felt as well
on the Senate floor, including the
utilization of the filibuster tactic. As a
jay mallin
www.ajs.org Judicature 287
Diversity on the bench
diego radzinschi
Albert Diaz became the first Hispanic American
to serve on the Fourth Circuit.
E xamining the first two years of Obamas presidency
reveals that, in terms of judicial nominees, ethnic
and gender diversity is the change we can believe in.1
Justice Sonia Sotomayors confirmation as the first Latina
to serve on the United States Supreme Court was one
of many historic firsts during the 111th Congress. In
the courts of appeals, O. Rogeriee Thompson is the first
African American to serve on the First Circuit, Albert
Diaz the first Hispanic American to serve on the Fourth
Circuit, and Denny Chin the first Asian American to serve
on the Second Circuit. The results are similar for the
district courts: women were confirmed to district courts
in two of the nine states where no woman previously had
served (Vermont and Wyoming); African Americans were
confirmed to district courts in two states (West Virginia
and Indiana) where none previously had served and the
first Asian American was confirmed to a district court in
Illinois.
These historic firsts are not surprising given the high
proportion of nontraditional appointees during Obamas
first term. Out of 61 appointments to lifetime judgeships
on courts of general jurisdiction, 43 were nontraditional,
that is, not white males, and total a remarkable 70.5
percent. As Table 6 in the main text notes, 31 women
were confirmed during the 111th Congress, account-
ing for more than half of Obamas appointees. The
proportion of women confirmed far exceeds that of any
previous administration (including Clinton, who made
the largest impact on diversifying the federal bench
prior to Obama). African-American appointees also
enjoyed great success as they comprised 26.2 percent of
those confirmed, again a vast increase over any previous
administration. Five Hispanic Americans were appointed
by Obama, but the proportion of total nominees (8.2
percent)while higher than Clintons 6.8 percentwas
slightly lower than during the administration of W. Bush.
288 Judicature Volume 94, Number 6 May-June 2011
However, the starkest comparison across presidential
administrations is for Asian Americans. In his first two
years in office, Obama appointed six Asian Americans
to the federal bench, which totals in absolute numbers
more than any other president during an entire presi-
dency. These appointees accounted for nearly 10 percent
of those confirmed during the 111th Congress, which
when compared over time, is truly remarkable.
Despite Obamas attention to appointing diverse
judges, the relative impact of the new set of appointees
on the overall diversity of the federal bench is fairly small.
The percentage of nontraditional judges in active service
(when not double counting women who also belong to
a racial minority group) was 38.8 percent when Obama
took office and totaled 39.5 percent at the end of the
111th Congress. This represents an increase of only 1.8
percent during Obamas first two years in office. (See
Table 1) This slight increase is even more puzzling when
compared to the 36.2 percent increase after Clintons
first two years or the 6.7 percent increase at W. Bushs
first midterm. Three factors help explain why the overall
impact of Obamas confirmed judges was so small, despite
the large proportion of nontraditional nominees: 1) in
absolute numbers, Obama made fewer appointments; 2)
the large number of vacancies created by nontraditional
judges leaving active service or being elevated; and 3) the
high proportion of double diverse nominees.
First, Obama simply made fewer appointments during
his first two years than past presidents. Having ben-
efited from the extraordinary number of vacancies he
inherited, W. Bush successfully added 99 judges to the
federal bench during his first two years, 32 of whom were
nontraditional. Clintons imprint was even largerhe
made 127 appointments (including 2 to the Supreme
Court) during his first two years, 75 of whom were non-
traditional. Comparing these numbers to Obamas 61
appointments, it becomes clear that although a greater
proportion of Obamas appointments were diverse, the
lower number of appointments resulted in less progress
overall in terms of diversifying the federal courts.
Second, a greater number of vacanciesespecially on
the district courtscame from nontraditional judges
leaving active service or being elevated to a higher-level
federal court. Of the 102 vacancies that occurred during
the 111th Congress, 37 were from nontraditional judges
(36.3 percent). This number is much higher than during
W. Bushs (13) or Clintons (17) first two years.
While interesting, this occurrence is not all that sur-
prising when we take into account the progression and
retirement of federal judges. Many judges leaving active
service do so under a partisan-compatible president
and Congress, since their replacement is more likely to
1. Barack Obama, Democratic National Convention Acceptance Speech,
August 28, 2008.
 originally was a Clinton appointee
(6 of 6). Similarly, Justice Sonia
Table 1. Proportion of nontraditional Sotomayor, Obamas first nominee
lifetime judges in active service to the U.S. Supreme Court, initially
on courts of general jurisdiction was appointed to the Second Circuit
January 1, 2009, and January 1, 2011 by Clinton. In other words, over
the past two years, Obama essen-
2009 2011 tially was playing catch-up with the
% N % N % Change vacancies created by nontraditional
U.S. district courts
judges appointed by Clinton (and a
Women 25.0* 166 26.0* 173 4.2 few by Carter).
African American 11.4 76 11.3 75 -1.3 Third, the diminished impact of
Hispanic American 7.2 48 6.8 45 -6.25 Obamas diverse appointments can
Asian American 1.2 8 1.8 12 50.0 be explained in part by the high
U.S. courts of appeals
proportion of double diverse nom-
Women 26.9** 45 28.1** 47 4.4 inees, i.e., those with more than
African American 8.3 14 10.8 18 28.6 one nontraditional characteristic.
Hispanic American 7.2 12 7.8 13 8.3 Of the 43 nontraditional appointees
Asian American 0 0 6.0 1 100 through midterm, 15 were women

U.S. Supreme Court
who also belong to a racial minor-
Women 11.1*** 1 22.2*** 3 200 ity group (34.9 percent). When
African American 11.1 1 11.1 1 0.0 examining diversity in the aggre-
Hispanic American 0.0 0 11.1 1 100 gate, this double counting artifi-
cially inflates the number of diverse
All three court levels
Women 25.2 212 25.2 223 5.2
judges credited to the President.
African American 10.8 91 10.8 94 3.3 However, when viewing nomina-
Hispanic American 7.1 60 7.1 59 -1.7 tions as a simple dichotomy, diverse
Asian American 1.0 8 1.0 13 62.5 or not diverse, the impact is less-
ened. Obama is not the first Presi-
Total nontraditional 38.8 326 **** 39.5 332 **** 1.8 ****
dent to appoint a high proportion
of minority women to the federal
*Out of 664 authorized lifetime positions. In 2011, 47 women also were either African American, Hispanic American, or courts. During his presidency, 37
Asian American, thus some double counting is inevitable.
percent of W. Bushs nontraditional
**Out of 167 authorized lifetime positions on the numbered circuits and the U.S. Court of Appeals for the District of
Columbia Circuit, all courts of general jurisdiction. In 2011, 9 women also were either African American or Hispanic appointees were judges with more
American, thus some double counting is inevitable. than one diversity characteristic, one
***Out of nine authorized positions on the U.S. Supreme Court. One woman was also Hispanic. of the reasons why his impact on the
****Totals and percentages do not double count those who were classified in more than one category. overall diversification of the bench
was more limited than the aggregate
numbers in Table 6 would suggest.
be ideologically similar. Clinton was the last partisan- In contrast to the small overall impact of Obamas
compatible president to Obama and appointed more nontraditional appointees at the district court level,
nontraditional judges to the federal bench than any the story is quite different at the courts of appeals.
other president, in terms of both absolute numbers and When not double counting women who also belong
proportionately. (See Table 6 in the main text) Thus, to a racial minority group, the proportion of nontradi-
it makes sense that many of the judges who took senior tional judges on the courts of appeals is 42 percent, an
status or resigned during Obamas first two years were increase of 11.1 percent (7 seats) from January 1, 2009
nontraditional Clinton appointees (18 of 30 judges January 1, 2011. Over these past two years every non-
totaling 60 percent). Including all Democratic appoin- traditional group made gains, although the net increase
tees in the analysis, the number increases to 21 of 30 of 4 seats by African Americans is most substantial. This
judgestotaling 70 percent.2 stands in contrast to the last two years of Bushs second
Additionally, many of Obamas initial nominees to term, when only women increased their presence at this
the courts of appeals were elevated from the district level. In just two years Obamas appointments led to a
courts (9 of 15), all 9 of whom were Clinton appoin- majority of nontraditional judges on the Fourth Circuit
tees. Even more striking, every nontraditional judge (4 African Americans, 2 white females, and 1 Hispanic
elevated from the district court to the court of appeals American) as well as an even split on the First Circuit
between nontraditional and traditional judges. This
2. Democratic appointees who took senior status or resigned during the
achievement equals what W. Bush accomplished during
111th Congress were appointed by Carter and Clinton. his entire presidency.

www.ajs.org Judicature 289

 Gender diversity increased on 3 courts of appeal (the
First, Ninth, and Eleventh Circuits) and decreased on
1 (the Second Circuit). Presently, all of the geographic
circuits have a sitting female judge, and all but the
Eighth Circuit have more than one woman, with the
Ninth Circuit having the most (10). Most significantly,
the racial and ethnic diversity on 5 of the geographic
circuit courts increased, and 3 of those courts (the
First, Second and Fourth Circuits) added nontraditional
judges not previously represented. With the addition of
Judge O. Rogeriee Thompson to the First Circuit, every
geographic circuit now has seated an African-American
judge. However, Hispanic-American judges have yet to
serve on 5 of the 12 circuit courts of general jurisdiction
(the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits).
With the elevation of Judge Denny Chin, an Asian Ameri-
can now sits on the Second Circuit. No Native American
has ever served on the federal court of appeals.
As we explored in the main text, the hyperpartisan
politics of the 111th Congress really took a toll on
Obamas ability to confirm district court nominees; only
56.4 percent of his nominees were confirmed, compared
to 68.2 percent at the courts of appeals. This contributed
to Obamas limited ability to alter the diversity balance
at the district court level. Specifically examining the
district courts, when not double counting women who
also belong to a racial minority group, the proportion of
nontraditional judges is 38.9 percent, a decrease of 1.2
percent (3 seats) from the preceding Congress. As was
discussed previously, a number of factors contribute to
this result: the lower overall number of Obamas appoint-
ments, the large number of nontraditional judges leaving
the district court (33), as well as the high proportion of
double diverse nominees (12).
Although diversity decreased on the district courts in
the aggregate, women were appointed to the bench in 2
states where none previously had served. However, district
courts in 7 states remain without any female judges, 19
without an African-American judge and 37 without a His-
panic-American judge. At the end of the 110th Congress,
these numbers were, 9, 20 and 36, respectively. Asian
Americans are present only on district courts in New York,
California, Hawaii, Kentucky, and most recently Illinois.
In addition, there are 6 states that have never seated a
nontraditional judge (Alaska, Idaho, Maine, Montana,
New Hampshire, and North Dakota). Some of this can
be explained by the small size of these courts, resulting
in fewer appointment opportunitiese.g., only 1 vacancy
occurred on a district within these states in the past two
years. However, as these opportunities arise, Obama
seems poised to offer the first nomination.
Going forward, Obamas ability to diversify the district
courts may continue to be hampered if a substantial
number of the surviving Clinton cohort leave active
service. 3 However, there are a number of factors that may
help him overcome this roadblock. First, his focus on ele-
vating nontraditional Clinton district court judges seems
to be waning. Since January 1, 2011, there have been 11
290 Judicature Volume 94, Number 6 May-June 2011
nominations to positions on courts of appeals, of which
2 already have been confirmed, and only 1 was a nontra-
ditional Clinton district court judge. Additionally, at the
district court level, Obamas appointment opportunities
abound given the number of vacancies left at midterm.
His opportunities, combined with his continued empha-
sis on appointing nontraditional judges21 judges have
been confirmed since January 1, 2011, 10 of whom are
nontraditional (48 percent); 26 of the 38 nominees
pending are nontraditional (68 percent)indicate that
Obama could impact the overall diversity of the district
courts much more significantly during the second half
of his term.
Table 2 aggregates district courts by circuit. It also
lists the percentage of women judges in each district
and compares the percentage of African Americans and
Hispanic Americans to the percentage of each group in
the circuits general population, since we expect states
with more diverse populations to also have more diverse
courts.4 Women continue to have the greatest presence
on district courts within the Second and Tenth Circuits,
and the lowest within the Fourth and Sixth Circuits.
That said, the Fourth Circuit saw the largest percent-
age increase (8.5 percent) with a net gain of 4 seats.
As in years past, the highest concentration of African-
American district judges is in the Fourth Circuit, and it
also is the circuit with the largest population of African
Americans.5 However, comparing overall representa-
tion on the bench to the general population, only four
circuits have African-American representation on the
courts greater than their representation in the popula-
tion (the Third, Eighth, Ninth, and Tenth Circuits).
The converse is true in the most Southern circuits (the
Fifth and Eleventh).
Underrepresentation is even more acute for Hispanic
Americans, despite 43 percent population growth over
the past decade; the states within the First, Fourth,
Sixth, and Eighth Circuits have no Hispanic-American
district judges and relative to their representation in the
population, the Second, Fifth and Ninth Circuits have
very few.6 The highest congruence between population
and judicial representation is on the Third and Seventh
Circuits. Table 2 does not report the relative proportions
of Asian Americans on the federal bench as compared
to the population because the numbers have been quite
small until recently. However, according to the 2010
census, the Asian-American population grew faster than
any other racial minority group, and outnumbers African
3. Since January 1, 2011 only 6 nontraditional judges have left active
service, 4 of whom were Clinton appointees.
4. Calculations for the First Circuit are performed with and without Puerto
Rico to get a more reliable view of the congruence between the Hispanic
population in that jurisdiction and its representation on the district bench.
5. The African-American population in the D.C. Circuit is actually the
highest, but since the Circuit consists only of one district court the underly-
ing unit of analysis is different, thus we excluded it from comparison.
6. Since January 1, 2011, 3 Hispanic-American district court judges have
been confirmed and all were to seats in the Fifth (1) and Ninth (2) Circuits.
Judge Marco Hernandez is the first ever Hispanic American district court
judge to serve in the state of Oregon.
 Table 2. D
 iversity on the district courts, January 1, 2011:
Active judges aggregated by circuit

Circuit % Female % African American % African American % Hispanic American % Hispanic American
district courts general population district courts general population district courts
First.1 25.9 7.1 3.7 28.1 25.9
First.2* 25.0 5.1 5.0 7.9 0.0
Second 38.5 14.6 11.5 16.6 1.9
Third 26.5 12.4 14.3 10.5 6.1
Fourth 24.5 22.3 18.4 7.3 0.0
Fifth 27.0 16.9 10.9 29.9 14.9
Sixth 22.0 13.1 13.6 3.8 0.0
Seventh 25.0 11.3 10.0 11.0 5.0
Eighth 31.6 7.8 13.2 4.9 0.0
Ninth 29.6 5.1 11.2 29.6 8.2
Tenth 34.3 4.3 8.6 17.8 17.1
Eleventh 33.9 21.5 12.9 15.7 9.7
D.C. 30.8 50.7 38.5 9.1 7.7

Data on 2010 general population compiled from the Statistical Abstract found at: http://www.census.gov/compendia/statab
* Excluding Puerto Rico

Americans in 9 states. If Obamas historic record of
appointing Asian Americans to the bench continues, this
comparison may be noteworthy.
Influencing factors
The diversity of Obamas judicial appointees gained
widespread media attention. While ultimately it is the
Presidents responsibility to nominate judges, we would
be remiss not to acknowledge factors both within and
outside of his control, which assisted the selection of
diverse candidates. First, comparing Obamas adminis-
tration to past administrations, Nan Aron, head of the
liberal group Alliance for Justice, noted, there is now a
much more active engagement by a diverse number of
groups. For instance, in addition to organizations like
the NAACP Legal Defense Fund, now there is a very
active engagement by Latino organizations as well as
Asian American ones. These outside interest groups are
bringing worthy candidates to the attention of the White
House, and, in the case of district court nominees, home-
state senators. As Vincent Eng of the Asian American
Justice Center observed, The White House is open, they
ask for names and when they ask for names, they look
at them. And I think that certain groups have been very
successful. I think the more successful groups are the
bar associations that have submitted names to the White
House.
For example, the National Asian Pacific American Bar
Association helped shepherd the successful confirmation
of 6 Asian Americans to the bench and the Hispanic
National Bar Association was instrumental with Justice
Sotomayors nomination and subsequent confirmation.
In addition to the White House and home-state sena-
tors readily listening to outside groups, there is simply a
larger pool of diverse candidates, and they now have the
assistance of dedicated interest groups in getting their
names to the right people. Eng noted, for example, the
work of his organization, to create the pipeline of indi-
viduals that would be competitive candidates has borne
some fruit. If you look at the Asian-American popula-
tion growth ...its a growing population, more and more
individuals are...breaking the mold of being engineers
and doctors. More are going to law school and so you
have a critical mass of individuals who are in the right
age group, the right education, and now the qualifica-
tions. So I think it works out very well for the community.
You had an administration that was friendly and open to
receiving names. Going forward, the continued engage-
ment of outside interest groups who have the ear of the
White House and connections to senators will certainly
ensure that diversity is kept at the forefront of the nomi-
nation process.
Overall, the sentiments of Assistant Attorney General
Christopher Schroeder sum up the Obama nomination
strategy at midterm: I think overall the effort to expand
the biographies of people on the bench has been a very
important concern of his administration Indeed, they
have pursued it and quite successfully. g

www.ajs.org Judicature 291

majority Judiciary Committee aide
commented:
The notion of taking floor time to
overcome filibusters of district court
nominees is really a way to grind the
Senate to a halt. It has nothing to do
with these nominees. It is a total shift....
Normally you give a lot of deference
to home-state senators, particularly on
district court nominees. A lot of defer-
ence to the President. Nobody thinks
its worth the political capital of a fight.
But what were seeing is when one
side sets that aside, thats what were
left with.
Several such district court nomi-
nees were held up from gaining
votes on the Senate floor through
such filibuster tactics, including
Edward Chen of California who had
the strong support of Senators Fein-
stein and Boxer and, as well, John
McConnell, a Rhode Island nominee
championed by Senator Sheldon
Whitehouse. The Senator refused to
take what Nan Aron characterized
as the worst insult lying down and
he articulated the argument of how
unprecedented it is for a senator
not to get his or her district court
nominee through.7
In a less than veiled threat to
the future of confirmation politics,
Whitehouse suggested that once you
take the fight to the district court
nominees it will be difficult to return
to past standards of deference and
reciprocity. It was the view of Curt
Levey, however, that opposition to
district court nominees was not part
of any opposition master plan of the
Republicans. On one level, it was
simply a reflection of the lack of suf-
ficient targets at the circuit level.
He [Obama] has been fairly moderate
with his circuit nominees so it just so
happens that three of the nominees
that really caught peoples attention
were district court nominees....When
you think about it, there is no real
reason why district court nominees
should be treated as unimportant. I
mean...they decide real cases all by
themselves.
Focusing directly on the district
nominees who have proven to be
controversial, Levey added that,
there is a feeling that where vacan-
cies are due to an excessive amount
of obstruction by Democrats, those
292 Judicature Volume 94, Number 6 May-June 2011
nominees should be held to a higher
standard.
The implicit filibuster threat that
could potentially block any and all
judicial nominees in the 111th Con-
gress served to alter the dynamic for
confirmation that, in the eyes of the
Democrats, went well beyond the
intention of the Senates rules. To
The implicit filibuster threat served to
alter the dynamic for confirmation.
confirm a nominee, a majority staffer
noted:
Its not getting to 51you need to
reach sixty.It played into this increas-
ing tendency to require an essentially
sixty vote threshold on everything
to get anything done, which is not
the way filibusters should work...The
Senates rules depend on a certain
amount of comity, not taking every-
thing to that degree because if you
have to file cloture and burn post-
cloture thirty hours of debate on every
judicial nominee, all you would do is
nominees....You cant do it. The twenty
three weve got on the calendar, the
fifteen were about to report. Thirty
eight nominees times thirty hours?
From the perspective of this aide,
this was far from the precedent that
was set in the filibuster attempts
mounted by the Democrats during
the W. Bush years:
One of the things that is lost in history
when people talk about Democratic fil-
ibusters of the handful of Bush circuit
nominees is what triggered those fights
was the Chairman [of the Senate Judi-
ciary Committee] disregarding the
blue slip process and letting people go
through with one blue slip and not two.
Whether or not blue slip issues
triggered the filibusters, Danielle
Cutrona suggested that more than
a handful of such nominees were
targeted.
The Democrats forced 30 cloture votes
on 17 different judicial nominees and
some of those nominees were filibus-
tered multiple times. Miguel Estrada
was filibustered seven times.
For Christopher Schroeder, the
reform that is necessary is not the
alteration of the filibuster rule per se
but, rather, the post-cloture rule that
forecloses Senate action:
Using this past Congress as a set of data
points you could eliminate or greatly
truncate the thirty hour post-cloture
debate rule to make the cloture peti-
tion less costly for judges....There have
been less than a handful of cases in
which anything approaching the thirty
hours has been actually used and yet, at
the same time, many cases in which the
Republicans have not waived the thirty
hours. So you just have to burn thirty
hours. Its just a complete and utter
waste of time. It is doing the public no
good because you cant do any other
business and its imposing this cost in
the process.
Of particular concern in the
context of nomination and confir-
mation obstruction and delay, is the
ever increasing number of federal
courts that have been designated
as Judicial Emergencies because of
their out-of-control workloads. The
change in the way such vacancies
have been treated was noted by a
long term Judiciary Committee staff
member:
Senator Leahy and other Democratic
senators and in the past Republican
senators approaching these matters
also took into account the vacancies on
the courts and concerns about those
vacancies....I remember when there
were circuit emergencies in various cir-
cuits and that bothered senators. They
wanted to quell that....I have not seen
that same sense of concern, a feeling of
a responsibility to take action, to help
resolve the vacancy concerns that have
now grown to what are really historic
proportions.
Articulating the problem and
posing a rhetorical question, another
committee aide noted that:
If Senator Leahy received a letter from
7. John J, McConnell, Jr., was eventually con-
firmed by the Senate in the 112th Congress on
May 4, 2011, by a vote of 50-44 after the Senate
voted cloture. This also was the scenario for
Edward Chen who was confirmed on May 10,
2011, by a vote of 56-42.
 it is a part:
One thing is figuring out how to make
Table 1. N
 umber and percentage of the vacancy rate tangible and personal-
ized so that people can understand
nominees confirmed by Senate how their life circumstances may
be adversely affected by a one-third
Congress District courts Appeals courts vacancy rate in some districts. And
95th 48/49 12/12 thats harder to do than Ive ever
(1977-78) 97.9% 100% thought. [One reason for this] is all the
wonderful senior judges who continue
96th 154/168 44/48 to holdmajor parts of their dockets
(1979-80) 91.7% 91.7% because they take their job seriously
and they dont want to leave in a lurch
97th 68/69 19/19 by just walking off into retirement. At
(1981-82) 98.6% 100% some point that will break down and
then I think you can begin to tell an
98th 61/75 12/15 important story.
(1983-84) 81.3% 80.0%
Danielle Cutrona observed,
99th 95/100 32/32 There have been high vacancy
(1985-86) 95.0% 100% rates before and...different people
100th 66/78 15/23
will acknowledge the crisis at dif-
(1987-88) 84.6% 65.2% ferent times....And theres a lot of
vacancies that are judicial emer-
101st 48/50 18/19 gencies for which we dont even
(1989-90) 96.0% 94.7% have a nominee....Thats part of the
102nd 100/143 19/30
problem, which I think will change.
(1991-92) 69.9% 63.3% I cant imagine it wouldnt.
The bottom line from the selec-
103rd 107/118 18/21 tion and confirmation process
(1993-94) 90.7% 85.7% is that when the 111th Congress
104th 62/85 11/19
ended, 44 of the 78 nominees to life-
(1995-96) 72.9% 57.9% time positions on the federal district
courts of general jurisdiction and
105th 79/94 19/28 15 of the 22 nominees to lifetime
(1997-98) 84.0% 67.9% positions on the numbered U.S.
106th 57/83 13/32
courts of appeals and the District of
(1999-00) 68.7% 40.6% Columbia Circuit were confirmed.
In percentages, as Table 1 shows,
107th 83/98 16/31 56.4 percent of Obamas district
(2001-02) 84.7% 51.6% court nominees and 68.2 percent
108th 85/94 18/34
of his appeals court nominees were
(2003-04) 90.4% 52.9% confirmed by the 111th Congress.
Table 1 also reveals that for the
109th 35/64 15/26 district courts, the proportion of
(2005-06) 54.7% 57.7% confirmed Obama appointees was
110th 58/79 10/22
the lowest since the first half of W.
(2007-08) 73.4% 45.5% Bushs second term (the 109th Con-
gress), which in turn was the lowest
111th 44/78 15/22 proportion in over 75 years and
(2009-10) 56.4% 68.2% likely historically. Tellingly, 41 of the
44 district judges were confirmed
unanimously, clearly underscoring
that they were not controversial
the Chief Judge of the Second Circuit, around and at least confirming those
or the Chief Judge of the District of [Ninth Circuit] judges? yet were subject to obstruction and
Vermont, talking about these prob- delay in the context of hyperparti-
lems, he would be outraged and [have] The answer, in part, given by sanship in the Senate, as recounted
a huge sense of responsibility. Youd Christopher Schroeder, is the dif- above. The Index of Obstruction
have to ask Jon Kyl why he does not feel ficulty of putting a real public face and Delay for district court nomi-
the same sense of responsibility when
on the Judicial Emergency crisis and nees during the 111th Congress was
he hears from Judge Kozinski in the
Ninth Circuit....Why isnt he turning the larger vacancy problem of which 0.5088, the highest recorded level,

www.ajs.org Judicature 293

as shown in Table 2. The Index
for the 110th Congress, when the
tables were turned (Republican in
Table 2. I ndex of obstruction and delay in
the White House) was about as high
suggesting big time payback by the the Senate processing of district
Republicans. court nominees
For the appeals courts, Table
Congress Senate Majority President/Party Index
1 shows that the proportion of
Obamas confirmed appeals court 95th Democrat Carter (Democrat) 0.0000
nominees was higher than for any (1977-78)
of the congresses during the W.
96th Democrat Carter (Democrat) 0.0750
Bush presidency and for most of the
(1979-80)
Clinton presidency. Yet, that propor-
tion, approximately two-thirds of all 97th Republican Reagan (Republican) 0.0000
nominees confirmed, was also rela- (1981-82)
tively low given President Obamas
98th Republican Reagan (Republican) 0.0545
large margin of victory in the presi-
(1983-84)
dential election and with a large
majority of Democrats in the Senate. 99th Republican Reagan (Republican) 0.1364
Ten of the appeals court nominees (1985-86)
to courts of general jurisdiction,
100th Democrat Reagan (Republican) 0.2800
were confirmed unanimously.
(1987-88)
The appeals courts as a partisan
battleground has been clearly estab- 101st Democrat GHW Bush (Republican) 0.0488
lished since the final two years of the (1989-90)
Reagan presidency. The Index of
102nd Democrat GHW Bush (Republican) 0.3465
Obstruction and Delay for Obamas
(1991-92)
appeals court nominees during
the 111th Congress, as shown in 103rd Democrat Clinton (Democrat) 0.0375
Table 3, was 0.6500, a high level, (1993-94)
but lower than that for Clintons
104th Republican Clinton (Democrat) 0.3780
second term and for half of W.
(1995-96)
Bushs presidency. These statistics
suggest that during the W. Bush 105th Republican Clinton (Democrat) 0.5000
presidency, Democrats were not shy (1997-98)
about payback to the Republicans
106th Republican Clinton (Democrat) 0.4722
for their record of obstruction and
(1999-00)
delay during Clintons second term.
And the Index for the 110th Con- 107th Democrat W. Bush (Republican) 0.2432
gress, being exactly the same as that (2001-02)
for the 111th suggests that the cycle
108th Republican W. Bush (Republican) 0.3516
continues unabated.
(2003-04)
The number of Obamas appeals
court nominees was low in compari- 109th Republican W. Bush (Republican) 0.4400
son to W. Bushs nominees during (2005-06)
his first term. Indeed, the number
110th Democrat W. Bush (Republican) 0.5079
was lower than for 3 of the 4 previ-
(2007-08)
ous congresses and tied with the
record for the 110th Congress, W. 111th Democrat Obama (Democrat) 0.5088
Bushs troubled last two years in (2009-10)
office.
Note: The Index is only for nominations to lifetime appointments to the district courts. Territorial district courts with
set terms are excluded.
District court appointees
Index is calculated as the number of nominations unconfirmed plus the number of nominations that took more
We turn to the demographic por- than 180 days from nomination to confirmation. It ranges from 0.0000, which indicates the complete absence of
trait of the 44 confirmed Obama obstruction and/or delay, to 1.0000, which indicates complete obstruction and/or delay. Nominations made after July
1 of the second session of each Congress are excluded from the Index.
nominees to lifetime appointments
on the federal district courts. Several
of them are profiled in Some

294 Judicature Volume 94, Number 6 May-June 2011

 notable Obama appointees (page
266). Table 4 presents the findings
Table 3. I ndex of obstruction and delay in for the Obama appointees and com-
pares them to those of the previous
the Senate processing of courts of four presidents. We note here some
appeals nominees of the more striking findings.
Perhaps the most impressive
Congress Senate Majority President/Party Index finding is the remarkable ethnic
and gender diversity of the appoin-
95th Democrat Carter (Democrat) 0.0000 tees. For the first time in Ameri-
(1977-78)
can history, a large majority of the
96th Democrat Carter (Democrat) 0.0682 appointees were nontraditional, that
(1979-80) is, not white males. Over two-thirds
of those confirmed were nontra-
97th Republican Reagan (Republican) 0.0000 ditional. Of those nominated but
(1981-82)
not confirmed, about 53 percent
98th Republican Reagan (Republican) 0.1429 were nontraditional. Combining
(1983-84) both groups, the total proportion
of those nominated by President
99th Republican Reagan (Republican) 0.0690 Obama who are nontraditional is
(1985-86)
about 62 percent. (See Diversity on
100th Democrat Reagan (Republican) 0.4762 the bench p. 288.)
(1987-88) In numbers and percentages,
the Obama administration made
101st Democrat GHW Bush (Republican) 0.0625 history with the appointment of
(1989-90)
Asian Americans. In percentages,
102nd Democrat GHW Bush (Republican) 0.5000 a historic proportion of African
(1991-92) Americans and women were also
appointed. Indeed, women consti-
103rd Democrat Clinton (Democrat) 0.0625 tuted a majority of Obamas district
(1993-94)
court appointees.
104th Republican Clinton (Democrat) 0.5263 In terms of American Bar Asso-
(1995-96) ciation Standing Committee on the
Federal Judiciary ratings, Obamas
105th Republican Clinton (Democrat) 0.6932 appointees had the largest propor-
(1997-98)
tion of all five presidents with the
106th Republican Clinton (Democrat) 0.7931 highest ratingthree out of four
(1999-00) appointees. Unlike the previous
two administrations, none received
107th Democrat W. Bush (Republican) 0.8387 a not qualified rating. Thus far,
(2001-02)
by ABA standards, it would appear
108th Republican W. Bush (Republican) 0.6176 that the Obama appointees con-
(2003-04) stitute the most qualified group of
appointees.
109th Republican W, Bush (Republican) 0.7308 In terms of party preference or
(2005-06)
affiliation, the Obama appointees
110th Democrat W. Bush (Republican) 0.6500 had close to 9 out of 10 whose party
(2007-08) preference was identified with the

111th Democrat Obama (Democrat) 0.6500 8. Note that President Obama on July 14,
(2009-10) 2010, nominated Marco Hernandez to fill a
vacancy on the Oregon federal district court
The Index is only for nominations to courts of appeals of general jurisdiction. This means that the U.S. Court of bench. Hernandez had first been nominated by
Appeals for the Federal Circuit is excluded. The Index for the 107th Congress excludes the nominations made by President W. Bush two years earlier on July 23,
President Clinton shortly before leaving office that were subsequently withdrawn by President Bush. 2008. Judge Hernandez was eventually unani-
mously confirmed on February 7, 2011. Press
Index is calculated as the number of nominations unconfirmed plus the number of nominations that took more reports did not identify him as identified with
than 180 days from nomination to confirmation. It ranges from 0.0000, which indicates the complete absence of any political party. But his having been backed
obstruction and/or delay, to 1.0000, which indicates complete obstruction and/or delay. Nominations made after July strongly by then Senator Gordon Smith and
1 of the second session of each Congress are excluded from the Index. then nominated by the W. Bush administration
has led some to speculate that he might be a
Republican identifier.

www.ajs.org Judicature 295

 Table 4. U.S. district court appointees compared by administration
Obama W. Bush Clinton Bush Reagan
% (N) % (N) % (N) % (N) % (N)
Occupation
Politics/government 11.4% (5) 13.4% (35) 11.5% (35) 10.8% (16) 13.4% (39)
Judiciary 52.3% (23) 48.3% (126) 48.2% (147) 41.9% (62) 36.9% (107)
Large law firm
100+ members 9.1% (4) 9.2% (24) 6.6% (20) 10.8% (16) 6.2% (18)
50-99 -- -- 5.0% (13) 5.2% (16) 7.4% (11) 4.8% (14)
25-49 4.5% (2) 4.6% (12) 4.3% (13) 7.4% (11) 6.9% (20)
Medium size firm
10-24 members 4.5% (2) 5.0% (13) 7.2% (22) 8.8% (13) 10.0% (29)
5-9 9.1% (4) 5.0% (13) 6.2% (19) 6.1% (9) 9.0% (26)
Small firm
2-4 4.5% (2) 4.2% (11) 4.6% (14) 3.4% (5) 7.2% (21)
solo -- -- 1.9% (5) 3.6% (11) 1.4% (2) 2.8% (8)
Professor of law 2.3% (1) 1.1% (3) 1.6% (5) 0.7% (1) 2.1% (6)
Other 2.3% (1) 2.3% (6) 1.0% (3) 1.4% (2) 0.7% (2)
Experience
Judicial 54.5% (24) 52.1% (136) 52.1% (159) 46.6% (69) 46.2% (134)
Prosecutorial 47.7% (21) 47.1% (123) 41.3% (126) 39.2% (58) 44.1% (128)
Neither 29.5% (13) 24.9% (65) 28.9% (88) 31.8% (47) 28.6% (83)
Undergraduate education
Public 45.5% (20) 47.1% (123) 44.3% (135) 46.0% (68) 37.9% (110)
Private 40.9% (18) 45.2% (118) 42.0% (128) 39.9% (59) 48.6% (141)
Ivy League 13.6% (6) 7.7% (20) 13.8% (42) 14.2% (21) 13.4% (39)
Law school education
Public 45.5% (20) 49.0% (128) 39.7% (121) 52.7% (78) 44.8% (130)
Private 31.8% (14) 39.1% (102) 40.7% (124) 33.1% (49) 43.4% (126)
Ivy League 22.7% (10) 11.9% (31) 19.7% (60) 14.2% (21) 11.7% (34)
Gender
Male 45.5% (20) 79.3% (207) 71.5% (218) 80.4% (119) 91.7% (266)
Female 54.5% (24) 20.7% (54) 28.5% (87) 19.6% (29) 8.3% (24)
Ethnicity/race
White 59.1% (26) 81.6% (213) 75.1% (229) 89.2% (132) 92.4% (268)
African American 25.0% (11) 6.9% (18) 17.4% (53) 6.8% (10) 2.1% (6)
Hispanic American 4.5% (2) 10.0% (26) 5.9% (18) 4.0% (6) 4.8% (14)
Asian American 11.4% (5) 1.5% (4) 1.3% (4) -- -- 0.7% (2)
Native American -- -- -- -- 0.3% (1) -- -- -- --
Percentage white male 31.8% (14) 67.4% (176) 52.4% (160) 73.0% (108) 84.8% (246)
ABA rating
EWQ/WQ 75.0% (33) 70.1% (183) 59.0% (180) 57.4% (85) 53.5% (155)
Qualified 25.0% (11) 28.4% (74) 40.0% (122) 42.6% (63) 46.6% (135)
Not Qualified -- -- 1.5% (4) 1.0% (3) -- -- -- --
Political identification
Democrat 88.6% (39) 8.0% (21) 87.5% (267) 6.1% (9) 4.8% (14)
Republican -- -- 83.1% (217) 6.2% (19) 88.5% (131) 91.7% (266)
Other -- -- -- -- 0.3% (1) -- -- -- --
None 11.4% (5) 8.8% (23) 5.9% (18) 5.4% (8) 3.4% (10)
Past party activism 54.5% (24) 52.5% (137) 50.2% (153) 64.2% (95) 60.3% (175)
Net Worth
Under $200,000 2.3% (1) 5.0% (13) 13.4% (41) 10.1% (15) 17.9% (52)
$200-499,999 9.1% (4) 18.0% (47) 21.6% (66) 31.1% (46) 37.6% (109)
$500-999,999 22.7% (10) 21.8% (57) 26.9% (82) 26.4% (39) 21.7% (63)
$1+ million 65.9% (29) 55.2% (144) 38.0% (116) 32.4% (48) 22.8% (66)
Average age at nomination 49.8 50.1 49.5 48.2 48.6
Total number of appointees 44 261 305 148 290

Presidents political party, which has,
for the most part, remained constant
throughout American history. The
appointees also had the largest pro-
portion of all five administrations
for those not identified with any
political party. Interestingly, not
one Republican identifier, as best as
could be determined, was appointed
to the district bench.8
The proportion of appointees
with a record of some form of pre-
vious political activism was about
the same as that of the appointees
of the previous two administrations.

296 Judicature Volume 94, Number 6 May-June 2011

 Table 5. U.S. appeals court appointees compared by administration
Obama W. Bush Clinton Bush Reagan
% (N) % (N) % (N) % (N) % (N)
Occupation
Politics/government 6.7% (1) 18.6% (11) 6.6% (4) 10.8% (4) 6.4% (5)
Judiciary 80.0% (12) 49.1% (29) 52.5% (32) 59.5% (22) 55.1% (43)
Large law firm
100+ members -- -- 5.1% (3) 11.5% (7) 8.1% (3) 5.1% (4)
50-99 -- -- 6.8% (4) 3.3% (2) 8.1% (3) 2.6% (2)
25-49 -- -- -- -- 3.3% (2) -- -- 6.4% (5)
Medium size firm
10-24 members 6.7% (1) 6.8% (4) 9.8% (6) 8.1% (3) 3.9% (3)
5-9 -- -- -- -- 3.3% (2) 2.7% (1) 5.1% (4)
Small firm
2-4 -- -- 1.7% (1) 1.6% (1) -- -- 1.3% (1)
solo -- -- 1.7% (1) -- -- -- -- -- --
Professor 6.7% (1) 6.8% (4) 8.2% (5) 2.7% (1) 12.8% (10)
Other -- -- 3.4% (2) -- -- -- -- 1.3% (1)
Experience
Judicial 80.0% (12) 61.0% (36) 59.0% (36) 62.2% (23) 60.3% (47)
Prosecutorial 73.3% (11) 33.9% (20) 37.7% (23) 29.7% (11) 28.2% (22)
Neither 6.7% (1) 25.4% (15) 29.5% (18) 32.4% (12) 34.6% (27)
Undergraduate education
Public 13.3% (2) 35.6% (21) 44.3% (27) 29.7% (11) 24.4% (19)
Private 33.3% (5) 47.4% (28) 34.4% (21) 59.5% (22) 51.3% (40)
Ivy League 53.3% (8) 17.9% (10) 21.3% (13) 10.8% (4) 24.4% (19)
Law school education
Public 20.0% (3) 39.0% (23) 39.3% (24) 32.4% (12) 41.0% (32)
Private 53.3% (8) 35.6% (21) 31.1% (19) 37.8% (14) 35.9% (28)
Ivy League 26.7% (4) 25.4% (15) 29.5% (18) 29.7% (11) 23.1% (18)
Gender
Male 66.7% (10) 74.6% (44) 67.2% (41) 81.1% (30) 94.9% (74)
Female 33.3% (5) 25.4% (15) 32.8% (20) 18.9% (7) 5.1% (4)
Ethnicity/race
White 46.7% (7) 84.7% (50) 73.8% (45) 89.2% (33) 97.4% (76)
African American 33.3% (5) 10.2% (6) 13.1% (8) 5.4% (2) 1.3% (1)
Hispanic American 13.3% (2) 5.1% (3) 11.5% (7) 5.4% (2) 1.3% (1)
Asian American 6.7% (1) -- -- 1.6% (1) -- -- -- --
Percentage white male 26.7% (4) 64.4% (38) 49.2% (30) 70.3% (26) 92.3% (72)
ABA rating
EWQ/WQ 66.7% (10) 71.2% (42) 78.7% (48) 64.9% (24) 59.0% (46)
Qualified 33.3% (5) 28.8% (17) 21.3% (13) 35.1% (13) 41.0% (32)
Political identification
Democrat 93.3% (14) 6.8% (4) 85.2% (52) 2.7% (1) -- --
Republican -- -- 91.5% (54) 6.6% (4) 89.2% (33) 96.2% (75)
Other -- -- -- -- -- -- -- -- 1.3% (1)
None 6.7% (1) 1.7% (1) 8.2% (5) 8.1% (3) 2.6% (2)
Past party activism 40.0% (6) 67.8% (40) 54.1% (33) 70.3% (26) 66.7% (52)
Net worth
Under $200,000 6.7% (1) 5.1% (3) 4.9% (3) 5.4% (2) 15.6%* (12)
$200-499,999 13.3% (2) 16.9% (10) 14.8% (9) 29.7% (11) 32.5% (25)
$500-999,999 13.3% (2) 27.1% (16) 29.5% (18) 21.6% (8) 35.1% (27)
$1+ million 66.7% (10) 50.8% (30) 50.8% (31) 43.2% (16) 16.9% (13)
Average age at nomination 53.7 49.6 51.2 48.7 50.0
Total # appointees 15 59 61 37 78
*Net worth was unavailable for one appointee.
Note that one recess appointment by W.Bush and one by Clinton are not included in the statistics.

The Obama, W. Bush, and Clinton
administrations appointed fewer with
a record of partisan activism than the
Bush 1 and Reagan administrations.
Almost two-thirds of the
appointees had a net worth in excess
of one million dollars, a new record.
The increasing proportion of million-
aires appointed to the bench under-
scores the warnings of Chief Justice
John Roberts and his predecessor
William Rehnquist that judicial sala-
ries are too low and as a result are
depriving the nation of legal talent
who simply cannot financially afford

www.ajs.org Judicature 297

 Partisan makeup of the bench
D espite Democrats winning the White House, a filibuster-
proof majority in the Senate,1 and more appointment
opportunities than in recent times, President Obama was
unable to significantly alter the overall partisan makeup
of the bench. In fact, at the start of the 111th Congress the
proportion of active judges on the lower federal courts
appointed by Democratic presidents was 39.1 percent and
had dropped to 37.9 percent as the 111th ended. While
it is instructive to examine the overall partisan change on
lower courts, we also separately analyze the district courts
and courts of appeals, as two very different stories are told
at those different levels of the federal courts.
Judicial selection was greatly affected by the bitter par-
tisan political divide over the past two years. The drama
that played out during the 111th Congress, especially over
district court nominees, significantly hampered Obamas
ability to make a dent in the Republican appointment
advantage on the district courts. At the beginning of
the 111th Congress, Democratic appointees held 39.8
percent of the total authorized positions for the district
courts and by the end the percent had dropped to 37.3.2
With the Obama administration slow out of the gate
with nominations and Republicans treating every district
court nominee with the scrutiny previously reserved
for Supreme Court or controversial courts of appeals
nominees, Obama obtained confirmation of only 44 dis-
trict court judges out of 78 nominations (56.4 percent)
from 111 appointment opportunities during his first two
years.3 By comparison, at this point in their presidencies,
Clinton and W. Bush successfully appointed 107 (90.7
percent of nominees) and 83 (84.7 percent of nominees)
district court judges, respectively.
At the end of the 111th Congress more than one in
ten seats on the district courts were vacant, which rep-
resents an increase of nearly 150 percent from the end
of W. Bushs tenure. The paucity of confirmations sig-
nificantly reduced Obamas ability to alter the partisan
composition of the district courts. Notably, if no Demo-
cratic appointees had left the bench, 44 confirmations
would not have been enough to swing the balance in the
Democrats favor. However, as discussed below, relatively
large numbers of prior Democratic appointees retired,
resigned, or were elevated during the 111th Congress.
More vacancies occurred on the district courts during
the past two years than in recent times84 compared to
62 during W. Bushs first two years and 60 during Clin-
tonsand the vast majority of these vacancies came from
Democratic appointees, a full 71.4 percent.4 Overall, this
fits the historical pattern in which accelerated depar-
tures from the bench especially judges taking senior
statusaccompany changes in partisan control of the
White House. This also makes sense, since judges who
are eligible to take senior status or retire with full benefits
would probably do so under a partisan-compatible presi-
dent and Congress since their replacement is more likely
298 Judicature Volume 94, Number 6 May-June 2011
to be ideologically similar.
This phenomenon may have been even more exag-
gerated in 2008-2010 since more than 60 percent of the
judges left active service before Senator Scott Brown was
elected in January 2009 as Senator Ted Kennedys suc-
cessor, officially ending the Democrats filibuster-proof
majority in the Senate. However, the Presidents ability
to alter the partisan makeup of the bench is contingent
upon his ability to replace appointees of the other party
with his own. Given that 71.4 percent (n= 60) of those
who left the district courts were appointed by Democrats,
Obama was very limited in this regard.
Also notable about the vacancies that occurred during
the 111th Congress is that, of the 84 judges who left
active service on the federal district courts, 55 (65.5
percent) were Clinton appointees.5 This represents the
generational effect, which posits that the overall com-
plement of departing judges in any given administration
is dominated by the appointees of a specific predecessor
of the same party as the sitting president. Carter appoin-
tees departed during Clintons administration, Reagan
appointees departed during W. Bushs eight years and
now we see Clinton appointees leaving in abundance.
Even considering the record number of vacancies, it
will be difficult for Obama to shift the partisan composi-
tion of the bench in any considerable way for a number
of years unless Congress passes some form of legislation
creating new judgeships for both the district courts and
courts of appeals. This is because of the rapidly dimin-
ishing Clinton cohort, where nearly 22 percent of active
Clinton judges left the district court over the past two
years. In fact, assuming that no additional Clinton or
Carter judges retire (which is quite unlikely), and assum-
ing that Obama is able to fill the 67 vacant seats (also
unlikely), nearly 35 percent of the judges appointed
by Reagan and George H. W. Bush would have to leave
active service and be replaced by Obama appointees to
bring partisan equity back to the district courts.
Courts of appeals
Turning our attention to the courts of appeals reveals
a different picture. As we have documented in previ-
ous articles, the battle over nominees to the courts of
appeals has intensified over the past 20 years and while
1. The delay of Senator Al Frankens swearing in until July 7, 2009, limited
the Democrats ability to take full advantage of their majority. Senator Ken-
nedys death in August, 2009 effectively ended the filibuster-proof majority.
2. When taking into account only active judges, thus excluding the 67
vacancies, 41.5 percent of district court judges were appointed by Democrats.
3. Of the 111 opportunities, 62 (56%) came from judges taking senior
status, 27 from inherited vacancies, 9 from elevations to the courts of
appeals, 7 from retirements, 3 from resignations, 2 from death, and 1 from
impeachment.
4. Vacancy data include judges who left the bench due to retirement, res-
ignation, elevation, death and impeachmentthe overwhelming majority,
of course, took senior status.
5. This includes those Clinton appointees who were elevated from the
district court to the court of appeals.
Obamas nominees surely did not
receive a pass, he was more suc-
cessful at getting them confirmed Table 1. Make-up of federal bench by
than recent administrations. At W.
appointing president, January 1,
Bushs first midterm, only 15 of his
31 nominees had been confirmed 2011 (lifetime positions on lower
(51.6 percent). Comparing those courts of general jurisdiction)

numbers to Obamas 68.2 percent
(15 of 22) begins to illustrate why District courts Courts of appeals
36.5 percent of authorized seats on Active Senior Active Senior
the courts of appeal were held by % N % N % N % N
judges appointed by Democratic Obama 6.6 44 0.0 0 9.0 15 0.0 0
presidents at the start of Obamas Bush, G.W. 37.7 250 0.0 0 31.7 53 1.9 2
term, but this number increased to Clinton 29.7 197 16.9 66 27.5 46 8.3 9
40.1 percent at the end of his first Bush 9.0 60 13.6 53 7.8 13 16.7 18
two years in office.6 Reagan 5.6 37 33.8 132 11.4 19 37.0 40
Additionally, at the start of the Carter 1.0 6 21.2 83 3.6 6 19.4 21
congressional term there were 13 Ford 0.15 1 3.3 13 0.6 1 2.8 3
appellate court vacancies, and only Nixon 0.15 1 8.4 33 9.3 10
16 additional appointment oppor- Johnson 0.15 1 2.0 8 3.7 4
tunities arose during the term12 Kennedy .8 3 .09 1
judges took senior status, 2 resigned, Vacancies 10.1 67 7.8 14
2 retired and 1 was elevated. This
is proportionately fewer than at the Total 100% 664* 100% 391 100% 167 100% 108
district court level, 10 percent com-
*Does not include temporary district court judgeships.
pared to 13 percent. In total, Obama (Percentages were rounded to 100%)
had 29 appointment opportunities
to the courts of appeals for which he 2009 2011
submitted 22 nominations. He suc-
District courts: D 39.8% 37.3%
ceeded in getting 15 nominees con-
R 56.2% 52.5%
firmed (52 percent), which is greater Vacancies 4.1% 10.1%
than the 44 of 111 opportunities at
the district court level (40 percent). Courts of appeal D 36.5% 40.1%
But once again, the president R 55.7% 51.5%
Vacancies 7.8% 8.4%
can only impact the balance on
the bench if he is able to appoint Overall D 39.1% 37.9%
judges to seats previously held by R 56.1% 52.3%
the opposing party. This is where Vacancies 4.8% 9.7%
Obama was even more successful. Of
his 15 appointments, 7 were to seats
where the incumbent was appointed by a Republican (47 Another way to evaluate the impact of a presidents
percent). Also, whereas 71.4 percent of those who left appointees on the partisan makeup at the appellate level
the district court were appointed by Democrats, this was is to aggregate by circuit, thereby allowing an assessment
considerably lower at the courts of appeals (9 of 16, or of how many circuits have Republican-appointed majori-
56.2 percent), which means that, going forward, Obama ties or vice versa. Analyzing the 111th Congress in this
does not have to play as much catch up. Indeed, Obama manner confirms the considerable impact of Obamas
may be able to more greatly impact the overall partisan appointees at the appellate level. At the start of Obamas
makeup of the bench because, at the court of appeals presidency, 9 of the 12 geographical circuits had Repub-
level, the Clinton cohort seems to be retiring and resign- lican-appointed majorities, 1 had a Democratic major-
ing at a far lesser rate. ity and 2 were evenly divided.7 After his first two years,
however, only 7 courts had Republican majorities and 4
had Democratic majorities.8 This stands in stark contrast
6. When taking into account only active judges, thus excluding the 14
vacancies, 43.8 percent of judges on the courts of appeal were appointed
to the change either Clinton or W. Bush were able to
by Democrats. exact after their first two years, where neither were able
7. Throughout our analysis we consider Roger Gregory to be a W. Bush
appointee. The circuits with Republican-majorities are the: 1st, 4th, 5th,
to shift any court majority.
6th, 7th, 8th, 10th, 11th and DC; even are the: 2nd, and 3rd; Democratic- Table 1 highlights W. Bushs success in making his
majority is: 9th
8. The circuits with Republican-majorities are the: 5th, 6th, 7th, 8th, 10th,
mark on the lower federal courts, since 37.7 percent of
11th, DC; even is the 1st; Democratic-majorities are the: 2nd, 3rd, 4th, and 9th. judges remaining on the district courts and 31.7

www.ajs.org Judicature 299

percent on the courts of appeals were appointed
by him. Only four W. Bush judges left active service
over the past two years, and we anticipate very few
leaving until after the presidential election in 2012.
The data in Table 1 also underscore the impact of
judges opting to take senior status, since the number
of senior judges is more than half the number of active
judges on each court level. Republican appointees make
up a clear majority of senior judges59 percent and
68 percent on the district courts and courts of appeals,
respectively. While senior judges have reduced caseloads,
they nonetheless are a critical component of the judi-
ciary and certainly the strong Republican majority has
an impact on judicial decision making. Even with the
increase in Clinton judges taking senior status, absent a
dramatic rise in the number of full retirements by senior
judges, Republicans will have the numerical advantage
for many years to come.
To impart change on the partisan makeup of the
bench, the hurdle Obama must overcome grows when
considering senior status judges. Combining both court
levels, 59.2 percent of all judges currently hearing cases
were appointed by Republican presidents.9 The Repub-
lican edge is slightly more pronounced at the appellate
level where 60.9 percent were appointed by Republi-
cans, as compared to 58.7 percent on the district courts.
Reagan appointees continue to dominate the group of
senior judgesthey comprise more than one third of
the judges on the federal district and appellate courts. g
9. Adding senior judges to those in active service totals 1249 judges, which
increases to 1330 when including vacancies.

to ascend the bench. Relatively low
federal judicial pay scales can be
expected to skew the judiciaries to
those with greater wealth.
Continuing the trend of recent
administrations is the growing pro-
fessionalization of the bench. A clear
majority of Obama appointees were
members of the judiciary at the time
of their appointment to the federal
district court bench. This trend also
included promotion from within the
federal judiciary, specifically the ele-
vation of U.S. magistrate judges and
even on occasion U.S. bankruptcy
judges. The trend began with Presi-
dent Ford appointing 8 percent from
these positions, climbed to Bush 1s
11 percent, Clintons 12 percent, and
W. Bushs close to 17 percent. The
proportion of Obama appointees
elevated from the U.S. magistrate
position was close to 23 percent.
The proportion of Obama
appointees with prosecutorial expe-
rience was approximately the same
as that of the W. Bush appointees.
But continuing the trend begun by
the Carter administration, there was
a larger proportion of appointees
with judicial than with prosecutorial
experience.
The proportion of Obama
appointees with an Ivy League law
school education was the highest
for all five administrations. If pres-
tige non-Ivy law schools are included
(among them Duke, Georgetown,
Northwestern, Stanford, Virginia, and
Wisconsin) the proportion of Obama
appointees with a prestige legal edu-
cation rises to about 45 percent. This
compares to about 31 percent of the
W. Bush appointees and 38 percent
of the Clinton appointees with a pres-
tige legal education.
The average age at time of nomi-
nation for the Obama appointees
was slightly lower than that of the
appointees of George W. Bush. The
average age of appointees to the dis-
trict courts over the past 20 years has
been between about 48 and 50.
Appeals court appointees
President Obama nominated 22 to
the appeals courts of general jurisdic-
tion, of whom 15 were confirmed
(several are profiled in Some notable
Obama appointees, p. 266). Table 5
offers a comparison of the Obama
appointees to those of his four imme-
diate predecessors in office. Because
of the relatively few Obama appoin-
tees, caution must be taken when con-
sidering percentage differences with
previous administrations. Among the
more striking findings:
Just as with the district court
appointees, Obamas appeals court
appointees were the most diverse in
terms of gender and race/ethnic-
ity in history. Close to 3 out of 4
were nontraditional. Of the 7 uncon-
firmed nominees, 6 were nontradi-
tional. Considering all nominees to
appeals courts, 17 of 22 (over 3 out
of 4) were nontraditional.
One-third of the appointees were
women, which was about the same as
Clintons record and higher than
the 1 out of 4 record for W. Bushs
presidency although his was the best
gender diversity record of all Repub-
lican presidents.
One-third were African Ameri-
can, the highest proportion for all
five administrations.
The Obama appointees had the
highest proportion of all five admin-
istrations of those who were serving
as judges at the time of their appoint-
ment. Four out of five were judges,
also the figure for those with judicial
experience.
About three out of four Obama
appointees also had prosecutorial
experience, a considerably higher
proportion than those for the appoin-
tees of the four previous presidents.
The Obama appointees had
the lowest proportion of those with
neither judicial nor prosecutorial
experience. Arguably, the Obama
appointees had the strongest profes-
sional credentials of all five adminis-
trations. Two out of three received
the highest ABA rating, a propor-
tion lower than that of the Clinton
appointees which remains a modern
record.
For the first time since the
Reagan administration, no one from
the major political party not control-
ling the White House was appointed.
Republican George W. Bush named
four Democrats to the appeals courts.

300 Judicature Volume 94, Number 6 May-June 2011

 Table 6. N
 on-traditional lifetime judicial appointees to
federal courts of general jurisdiction by presidential
administration from Franklin Roosevelt through Barack
Obamas first two years
President Women African Hispanic Asian Total
American American American nontraditional**
N %* N %* N %* N %* N %*
F. Roosevelt 1 0.5 -- -- -- -- -- -- 1 0.5
Truman 1 0.8 1 0.8 -- -- -- -- 2 1.6
Eisenhower -- -- -- -- -- -- -- -- -- --
Kennedy 1 0.8 3 2.4 1 0.8 1 0.8 6 3.9
Johnson 3 1.8 10 5.9 3 1.8 -- -- 15 8.9
Nixon 1 0.4 6 2.6 2 0.9 1 0.4 10 4.4
Ford 1 1.5 3 4.6 1 1.5 2 3.1 7 10.8
Carter 40 15.5 37 14.3 16 6.2 2 0.8 87 33.7
Reagan 29 7.8 7 1.9 15 4.0 2 0.5 51 13.7
G.H.W. Bush 36 19.3 13 7.0 8 4.3 -- -- 52 27.8
Clinton 108 29.3 61 16.6 25 6.8 5 1.4 177 48.1
W. Bush 69 21.4 24 7.5 29 9.0 3 0.9 106 32.9
Obama 31 50.8 16 26.2 5 8.2 6 9.8 43 70.5

*Percentage of total number of appointees to lifetime judgeships on courts of general jurisdiction (U.S. district courts, U.S. appeals courts, and U.S. Supreme Court).
** These numbers do not double count appointees who fall into more than one nontraditional category.

Democrat Barack Obama named no
Republican. Would nominating one
or more Republicans have smoothed
the way for a less contentious con-
firmation process? Probably not, as
naming some Democrats did not
lessen the contentiousness surround-
ing W. Bushs nominees.
The proportion of the Obama
appointees with a record of past
party activism was the lowest for all
five administrations.
Just as with the district court
appointees, a record proportion of
appeals court appointees had a net
worth in excess of one million dollars.
Obamas appointees on average
were the oldest of all five administra-
tions with an average age of 53.7.
About one in four had an Ivy
League law school education; a
proportion similar to that for the
appointees of the four previous
administrations. If we include those
who graduated from such prestige
non-Ivy law schools as New York
University and Vanderbilt, the pro-
portion of those with a prestige legal
education was about 47 percent.
The proportion of W. Bush appoin-
tees with a prestige legal education
was over 50 percent, similar to the
Clinton appointees but somewhat
larger than the proportion for the
Reagan and Bush 1 appointees.
The emerging
Obama judiciary
Gender and ethnic diversity, as we
have seen earlier and whose impact
on the judiciary is discussed in
Diversity on the bench (p. 288),
is the hallmark of the emerging
Obama judiciary. Table 6 aggregates
the diversity numbers and propor-
tions for the lifetime appointments
on the three major federal courts of
general jurisdiction since the Frank-
lin Roosevelt administration named
the first nontraditional federal judge
(Florence Allen to the U.S. Court of
Appeals for the Sixth Circuit). The
table shows the evolution of token
diversity to the historic proportions
of the Obama administration. It
is hard to imagine any backtrack-
ing on diversity by the Obama
administration.
Given the uncertainties and con-
tentiousness of American politics,
particularly in light of the congres-
sional election of 2010 where the
Democrats suffered significant losses
(losing control of the House of Rep-
resentatives and losing strength in
the Senate), it is a challenge to
speculate about the future including
what we might expect were there to
be a Supreme Court vacancy to fill.
(More detailed consideration is in
Supreme Court nominations, page
274) Even though at the start of the
112th Congress, the Senate voted
to end the practice of secret holds,
there still remained the obstacle of
the necessity of unanimous consent
to proceed to a vote without having
to set aside 30 hours of debate for
each nominee. And the filibuster
remains unchanged.
As of this writing confirmations
have occurred in drips and drabs.
If going into the 2012 presidential
election the President looks par-
ticularly vulnerable, it is likely that
Republicans will seek to halt the
confirmation process with the hope
that a Republican president would
be able to fill those positions. If this
were to occur, we can fully expect
Democrats to exact payback as the
cycle continues. With the indepen-
dence and integrity of the judicial
branch of government at stake, it
is a fair question to ask, when will
the Senate leadership take decisive
steps to end this ongoing confirma-
tion crisis?

www.ajs.org Judicature 301


What next?
W hat then, does the future hold
for the Obama judicial selection
process and its prospects for doing
better in the second half of the
administrations first term, the 112th
Congress? For the OLPs Christo-
pher Schroeder, the glass is both half
empty and half full. The good news
is that there will be more time to
spend on nominations. The bad news
is that it will be harder to get nomina-
tions through.
With the Spring of 2012 looming
as the time when the curtain for con-
firming judges is likely to come down
in anticipation of the presidential
election, Schroeder notes that, I
dont know what the incentive is for
the opposition to change its tactics
for the 112th Congress. Danielle
Cutrona, Minority Chief Counsel
for Nominations for ranking Senate
Republican on the Judiciary Com-
mittee Jefferson Sessions, agreed
noting:
I just cant imagine that it wont be a
priority for the administration...with
all the outcries from the groups about
the pace and whatnot. I just cannot
imagine that there wont be a flood of
nominations in the next Congress.
Cutrona added, however, I just
cant imagine there would be a
huge change in the scrutiny during
Senator Charles Grassleys watch as
ranking minority member with pro-
portionately higher Committee and
Senate Republican strength.
Curt Levey saw a similar impetus
for the President acting aggressively,
yet was uncertain whether he would,
given his seeming distaste for the
likely engagement:
One possibility is that he will feel like
he has to, especially with the presi-
dential election coming up...need to
energize the base....Maybe they will
convince themselves that as long as
we are going to have low confirmation
rates, we might as well nominate some
really bad guys, more really bad guys.
And I guess there is something to be
said for that.
302 Judicature Volume 94, Number 6 May-June 2011
In Leveys view, as long as the
Democrats retain a Senate major-
ity, the Republicans can only stop
so many and must pick and choose
whom to filibuster with the resources
at hand. Whether the Democrats will
press that advantage, according to
Levey, was an open question. There
will be a lot of fights and, again, I
dont get a sense he has any more
stomach on the social issues than he
had before.
If Leveys guess is right, this will
not sit well with the Presidents base-
supporting groups such as the Alli-
ance for Justice. According to Nan
Aron:
I dont think he has a choice. If he
wants to win re-election he has to step
up to the plate, not only on this, but on
jobs. He has to put on his boxing gloves
and fight. If he doesnt, hes gone.
Beyond the imperatives of elec-
toral politics, Aron sees ample reason
for the judges issue to gain leverage:
There could be a stepped up national
debate on judicial nominees because,
in effect, this could be one of the
few items Democrats can take up with
Obama taking a less active role leg-
islatively there could be opportuni-
ties....This issue will become more high
profile as the Obama legislative agenda
slows down, number one. Number two,
if...the numbers continue to pile up
in terms of vacancies and pending
nominees, the Senate will be forced to
hold votes, whether they like it or not.
Theyll have to schedule votes.
Offering another perspective, the
Asian American Justice Centers
Vincent Eng noted the difficulties of
responding to the absence of over-
whelming legislative priorities. Now
theres multiple goals and trying to
re-shift and reorganize around that
takes time. Eng further observed
that not responding successfully,
with respect to putting their
resources behind the nominees, will
lead them to just fade away, with
broadly damaging consequences for
the president:
I think it...resonates poorly for world
politics if you have a president who is
being rolled on his nominations which
is, for most countries...What is that?
Can this president be rolled on other
things as well?....I think when you
look at the greater context, getting
rolled on something like this has...
other repercussions in other areas.
Such observations were offered
in a world before the administra-
tions triumph in finding and killing
the countrys most feared villain-
ous adversary, Osama Bin Laden,
with all of its implications for the
Presidents popularity and stature
on the national and international
stage. At the time of this writing,
early June, 2011, we may be begin-
ning to see signs of which direction
the tea leaves of judicial selection
politics will fall. This may include, it
appears, a more engaged presidency
in the politics of judicial selection
with over 50 pending nominees, the
majority of whom are, of course,
resubmissions of failed nominations
from the 111th Congress.
It is noteworthy, however, that
24 nominees have already been
confirmed in the 112th Congress,
approximately 40 percent of the
total number of confirmations in the
111th, including a number for whom
successful cloture was obtained.
Nevertheless, when the controver-
sial Goodwin Liu nomination was
brought to the Senate floor for a
cloture vote, it was soundly defeated,
with only one Republican voting to
end debate and one Democrat voting
to uphold the filibuster. Thus, the
paceof nominations may increase in
the 112th Congress, at least through
early 2012, while there still remains
time to gain confirmation before
the window of opportunity comes
down on the congressional session.
Nevertheless, it remains the case
that for those nominees to the left
of some ill-defined metric of mod-
eration, the road to confirmation
and, perhaps, even nomination will
remain a difficult one to travel.
Predicting the future of nomina-
tion and confirmation politics is, of
course, as difficult an enterprise as
understanding its past. Several sce-
narios suggest themselves, however,
for consideration. In Assistant Attor-
ney General Schroeders view, there
is little reason for the process to get
appreciably better unless there is
a perception that obstruction and
delay exacts a price. According to
rick reinhard
When the controversial Goodwin
Liu nomination was brought to
the Senate floor for a cloture
vote in the 112th Congress, it
was soundly defeated.
Schroeder, it will be difficult to:
get much progress in the 112th even
if it got to be a recurring, top of the
fold story, or covered by the cables with
some regularity, which I dont think it
will. But even if it did, it would have
to get to the point where the people
who want to be elected in 2012 on the
Republican side think they are actu-
ally paying a price for holding out.
And so far, I think its the opposite.
So far, I think it just excites their base.
If they become convinced that theyre
losing moderates and independents
who are beginning to look at the size
of the vacancy rate and the lack of any
individualized justification for holding
people up, it might make a difference.
Hasnt happened yet.
Presently, Schroeder noted, with
the Republicans holding hope of a
2012 presidential election victory,
they are going to want as many
judges [as possible] for that person.
The Republican base would see
their people swallowing Obama
judges when theyre on the brink of
throwing him out of office as a form
of treason. In a scenario in which
Obama is defeated and the Republi-
cans take control of the Senate, the
213th congressional session could be
poised for judgeship warfare. At that
point, wed be:
in a round where history might not
be an accurate guide because if the
Democrats are in the minority theyre
going to be a fairly homogenous group
of liberals and they just might decide
to throw themselves across the track
on judges.
Viewing variations of this scenario,
a veteran Democratic participant in
selection politics painted a similarly
grim portrait:
So youve got Grassley rather than
Sessions, who starts to look like a total
sweetie....And then you have him in
line to become Chairman if they take
the Senate but we retain the presidency
in 2012, so that will be another night-
mare. And if they take the presidency
and the Senate there will not be an
unqualified nominee. The combina-
tion of Senator Grassley and his attri-
butes and Senator Hatch and his...
charming as he can be sometimes,
hypocrisy....Whats good for the goose
is good for anybody in the gooses
shoes and it doesnt matter if its com-
pletely inconsistent with what he said
a second ago....I mean they might as
well just skip the confirmation process
because it will be horrible.
Seen from the Republican per-
spective, the future for confirmation
politics in the 112th Congress would
appear to be best characterized as
stay the course. As opined by Curt
Levey. As long as they use obstruc-
tion...effectively, why should they
give it up?....Unless Democrats get
a taste of their own medicine, why
should they ever agree to stop it? In
Leveys view, however, the strategy
will amount ultimately to continued
delay but not obstruction:
At the end of the day, theyre going to
be confirmed....I think the point of it
is basically to say, Look, you guys. Its
basically to have some payback. To give
the Democrats some incentive for not
just doing it every time theres a Repub-
lican president. But as part of a strategy
to keep Obama nominees off the court,
its not even effective because they will
eventually be confirmed.
If there is a doomsday scenario
lurking, it would follow the script of
a continuation of alternating parti-
san control of the White House and
the Senate, coupled with chamber
minorities that continue to obstruct
and delay the presidents nomi-
nees. In such a seemingly possible
denouement, as Christopher Schro-
eder observed, by:
2020 [the federal bench] could be
half vacant. We could easily be a third
vacant. That would be a fairly realis-
tic estimate. I cant imagine that will
happen. I cant imagine that the pres-
sure wont build to a point that the dam
will break some degree before that.
One final possibility, of course,
is that a new Democratic resolve to
engage on the judges issue as deeply
and as passionately as the Republi-
cans and their base do will have an
ameliorative impact on the process
with strength being matched against
strength. As a long time analyst of
the process explained:
You need a group of people who know
about all the puts and takes. Theyve
bitten us, how do we bite them? And
then the flip side of that....What are all
the things...that lay before the presi-
dent to do for critical Republicans.
Because they can send up a letter and
say, All 42 of us are going to huff
and puff and blow your house down,
but then the second the Presidents
political person calls up and says, You
know, thats so too bad because the
President...is seriously considering
appointing...your wifes brother to this
position. And all of a sudden the
person says, Well, actually, I dont
really care that much about the lead-
ership.....Its not pretty. Theres no
grand scheme. But you have to come
up with the dagger in the teeth, the
sort of sugar and then the dagger
in the teeth approach, and just fight
through the alley until you get to the
other end. g
SHELDON GOLDMAN
is a professor of political science at the
University of Massachusetts, Amherst.
(sheldon.goldman@polsci.umass.edu)
ELLIOT SLOTNICK
is a professor of political science
at The Ohio State University and
associate dean of the Graduate School.
(slotnick.1@gradsch.ohio-state.edu)
SARA SCHIAVONI
is an instructor in political science at
John Carroll University. (sschiavoni@
jcu.edu)
www.ajs.org Judicature 303