New leadership takes over this week in President Barack Obama's legal shop, and among the challenges facing incoming White House Counsel Robert Bauer is how to reinvigorate the administration's efforts to shape the federal judiciary.
The U.S. Senate ended the year having confirmed three nominees to federal circuit courts, half as many as were confirmed during President George W. Bush's first year. Among nominees for district court judgeships, the difference is even more stark -- nine won confirmation during 2009 compared with 22 during 2001. Six circuit nominees and four district nominees have passed through committee but not received a vote in the full Senate.
At the U.S. Department of Justice, Obama has filled 12 of the top 15 positions while Bush had people in all the department's top positions by this time. Three nominees have stalled. One is Duke Law School professor Christopher Schroeder, who would head up the Office of Legal Policy, a key slot for vetting nominees for the judiciary. A fourth vacancy will open up when Deputy Attorney General David Ogden returns to private practice in February.
Two primary factors have contributed to gridlock in the Senate. Republicans have used the Senate's quirky rules -- including a requirement for unanimity before a vote can be scheduled -- to delay confirmation votes, while Democrats have chosen to spend their time on other issues, such as health care, rather than use their 60-member caucus to force votes. Sen. Sheldon Whitehouse, a Democrat and member of the Judiciary Committee, said moving nominees just hasn't been a priority and there's no indication when that will change.
"If you didn't have a legislative agenda, you could simply push nominees all the time," said Walter Dellinger, an O'Melveny & Myers partner in Washington who served in the Clinton Justice Department. "Once health care is done, I hope the president will make confirmations a priority."
Adding to the delays, the Obama administration has been slower than the Bush administration was in sending judicial nominations to the Senate, submitting 12 circuit nominations last year compared with 28 for Bush in 2001. The White House last named a circuit nominee on Nov. 4.
Liberal advocates are hoping Bauer, formerly a partner in the Washington office of Seattle-based Perkins Coie, will help speed up the pace of nominations. The next few months will be critical, they said, because the possible retirement of a U.S. Supreme Court justice this year would eat up time and resources that otherwise would be spent on nominees for lower courts. The confirmation process for Justice Sonia Sotomayor consumed the White House and Senate staffs last summer.
"We may have a shorter window to get things done," said Marge Baker, executive vice president of the liberal People for the American Way. The delays, she said, are trying the patience of the Democrats' most ardent supporters. "We need to find the time and do whatever we need to do to call Republicans on their obstruction."
Republicans said the delays are minor compared with how long Republican nominees waited. They note that some of Bush's picks never had a committee hearing, let alone a confirmation vote, while Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, has usually moved Obama's nominees through committee within a few months.
Sen. Jeff Sessions, R-Ala., the committee's top Republican, recalled those Bush-era delays when, in a hearing last month, Whitehouse, a first-term senator from Rhode Island, asked for a quick vote on a circuit nominee from his state. "Some of my colleagues who are newer to the committee ought to be aware of some of the things that have happened in the past," Sessions said. "It was hardly the cooperative atmosphere that we might want to remember."
WAITING FOR ACTION
Many of the remaining judicial nominees have received little specific criticism, and some enjoy the support of Republican home-state senators.
U.S. District Judge Beverly Martin of the Northern District of Georgia, nominated for elevation to the 11th U.S. Circuit Court of Appeals, has been waiting the longest. She was nominated June 19 and won committee backing Sept. 10, with the support of Georgia Republican sens. Saxby Chambliss and Johnny Isakson.
In a possible sign that their confirmations are not imminent, DOJ nominees Schroeder and Indiana University Maurer School of Law -- Bloomington professor Dawn Johnsen are scheduled to teach classes next semester. Johnsen, picked for the Office of Legal Counsel, has been criticized by Republicans for her advocacy on behalf of abortion rights and civil liberties. Schroeder has taken heat for agreeing with Obama on the role of empathy in judging, among other views.
Attorney General Eric Holder Jr. told reporters in October that Johnsen's nomination has been pending "far too long." Her one-year anniversary of being named is Jan. 5. Schroeder was nominated June 4. Schroeder declined to comment for this story, and Johnsen did not return a call requesting comment.
The third pending DOJ nominee, Mary Smith for the Tax Division, was a partner in the Chicago office of Schoeman, Updike & Kaufman. She resigned in late November, said managing partner Mindy Stern, who declined to elaborate. Smith, whom Republicans have targeted because of her lack of tax law experience, did not respond to a message left with a relative.
Last month, Republicans objected to carrying the three nominees over to the new year, so Obama will have to go through the formal process of renominating them. In a brief interview last month, Associate Attorney General Thomas Perrelli, DOJ's No. 3 official, said he's hopeful the remaining nominees will be confirmed but didn't say when he thought that might happen. "We think they would add a tremendous amount to the department," he said.
FINDING TIME
But even if health care moves from the agenda, there's still no indication nominees will become a priority. Democrats are likely to push for legislation on energy and financial regulation, and that means they'll be less willing to spend the two or three days it often takes to break a filibuster on a nominee.
"Republicans are burning up as much floor time as they can on anything and everything, because floor time is the one thing that's irreplaceable," said Whitehouse. In an interview on Dec. 16, he said the Senate's Democratic caucus had not recently discussed a strategy for moving nominees because it is so consumed with its legislative agenda.
Curt Levey, president of the conservative Committee for Justice, said he thinks Republicans are interested simply in delaying some nominees, not in blocking them permanently. "Their strategy is to have there be a cost for nominating people outside the mainstream," he said.
