Executive Branch

Obama Lags Behind Predecessors on Judicial Picks


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President Barack
Obama. Rena Schild
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At this point in his administration, President Obama lags behind both Presidents Bill Clinton and George W. Bush in terms of his lower-court appointments.

Obama has appointed 125 federal trial court judges to date, the New York Times reports, compared with 170 such judges at a similar point in Clinton’s first term and 162 for Bush.

The president has still put a significant stamp on the federal judiciary, the Times notes, appointing two U.S. Supreme Court justices—the same number as Clinton and Bush did in eight years—and 30 appeals court judges, roughly as many as either Clinton or Bush did on average per term. But his impact there has been uneven, making significant changes in some circuits while leaving others untouched.

Obama’s record stems in part from a decision at the beginning of his presidency to make judicial nominations a lower political priority, according to documents and interviews with more than a dozen current and former administration officials and court watchers across the political spectrum. Senate Republicans have also played a role, the Times says, ratcheting up partisan warfare over judicial nominees by delaying confirmation hearings even over uncontroversial picks.

Unlike Bush, who quickly nominated a slate of appeals court judges, including several outspoken conservatives, early in his first year, Obama has moved more slowly and sought relatively moderate jurists who he hoped would not provoke cultural wars that distracted attention from his ambitious legislative agenda.

“The White House in that first year did not want to nominate candidates who would generate rancorous disputes over social issues that would further polarize the Senate,” Gregory B. Craig, Obama’s first White House counsel, told the Times. “We were looking for mainstream, noncontroversial candidates to nominate.”

Obama is also virtually certain to leave more vacant federal judgeships at the end of his first term than he inherited from Bush. He has also reduced his long-term influence on the courts by appointing judges who were more than four years older, on average, than Bush’s appointees, according to data compiled by Russell Wheeler, A Brookings Institution scholar.

The president has also largely shied away from nominating assertive liberals who might stand as ideological counterpoints to some of the assertive conservatives Bush named. Instead of prominent liberal academics whose scholarly writings and videotaped panel discussions would provide ammunition to conservatives, Obama gravitated toward litigators, prosecutors and sitting district and state court judges, especially those who would diversify the federal bench.

“Obama didn’t assertively put forward progressive candidates who would be ideological counterweights to some Republican appointees, and yet his choices have been met with relentless obstructionism anyway,” said Nan Aron, president of the D.C.-based advocacy group Alliance for Justice. “All of this has left Obama with a significantly smaller judicial footprint than he is entitled to.”

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