On May 19th, Senate Republicans successfully filibustered the nomination of Goodwin Liu for the Court of Appeals of the Ninth Circuit. Under the deal reached by the “Gang of 14” in 2005, senators agreed not to filibuster judicial nominees except under “extraordinary circumstances.” Republicans used that exemption to block Liu’s nomination, even though the Berkeley law professor is widely regarded as one of the sharpest constitutional scholars in the country, earned praise from conservatives like Ken Starr and John Yoo, and was named “unanimously well-qualified,” by the American Bar Association.
The very Republican senators who filibustered Liu’s nomination once decried the tactic. “I would never filibuster any President’s judicial nominee, period,” said Senator Lamar Alexander (R-TN) in 2005. But under the Obama Administration, Alexander and his ilk have had a change of heart. Their level of obstructionism keeps reaching new heights.
According to a report [pdf] from the Alliance for Justice:
Of the 105 nominations submitted by President Obama during the first two years of his term, only 62—2 Supreme Court justices, plus 16 courts of appeals and 44 district court judges—were confirmed. That is the smallest percentage of judicial confirmations over the first two years of any presidency in American history.
Judicial vacancies increased from 55 to 97 during President Obama’s first two years, whereas under both President’s Bush and Clinton, vacancies declined.
Senate Republicans used every parliamentary tool they could to obstruct and delay President Obama’s nominees, including placing secret holds on each judicial nominee who reached the Senate floor, even those that had the support of Republican home-state senators. They also denied votes on 13 nominees at the end of the 111th Congress who received no Republican opposition in committee.
Today 53 Obama judicial nominees still have yet to be confirmed by the Senate. Of the 1132 executive and judicial branch nominations submitted to the Senate by President Obama, 223 nominees have yet to receive a vote on the Senate floor, according to White House data. That means that nearly 20 percent of Obama nominees have been blocked by Senate Republicans.
In response to this obstruction, Obama has filled 28 vacant positions via recess appointments. President Bush, in contrast, made 171 recess appointments during his presidency, including John Bolton for UN ambassador and two controversial judicial nominations, Charles Pickering and William Pryor, to the US Court of Appeals. To catch up with Bush, Obama would have to make roughly twenty-eight recess appointment per year until the end of his presidency, assuming he wins a second term and governs for eight years.