Barack Obama judicial appointment controversies

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During President Barack Obama's terms in office, he nominated 7 people for 27 different federal appellate judgeships and although some nominees were processed by the Repubican-controlled Senate Judiciary Committee, many of them stalled on the floor of the Senate Barack Obama nominated over three hundred individuals for federal judgeships. Of these nominations, Congress confirmed three hundred and seven judgeships, 173 during the 111th & 112th Congresses[1] and 134 during the 113th Congress.[2]

With the Death of Antonin Scalia in February of 2016, in the thick of a Presidential election year, the Republican majority in the Senate decided to delay indefinitely the confirmation hearing for his replacement until after the November 2016 election. Scalia's death—only the second death of a serving justice in a span of sixty years[3]

Republicans filibustered many nominees, and Senator Grassley commented more nominees could have been confirmed had President Obama respected recess appointment precedent by not making recess appointments while the Senate is in session.[4] Although President Obama had never used a recess appointment to appoint a nominee to the federal bench, he had appointed some executive agency officials in January 2012.

As a response to the continuing blocking of several of President Obama's nominees, Sen. Harry Reid on November 21, 2013 invoked the so-called Nuclear option and changed the Senate rules, meaning a simple majority vote will suffice for all nominees except for the Supreme Court.[5]

Failed Supreme Court nomination[edit]

Political commentators widely recognized Scalia as one of the more conservative members of the Court, and noted that a more liberal replacement could shift the Court's ideological balance for many years into the future. The confirmation of Garland would have given Democratic appointees a majority on the Supreme Court for the first time since the 1970 confirmation of Harry Blackmun.[8] After the death of Scalia, Republican Senate leaders announced that they planned to hold no vote on any potential nomination during the president's last year in office.[9] Senate Democrats responded that there was sufficient time to vote on a nominee before the election.[10] Garland's nomination expired on January 3, 2017, with the end of the 114th Congress. The nomination remained before the Senate for 293 days,[11] more than twice as long as any other Supreme Court nomination.[12] On January 31, 2017, President Donald Trump announced his selection of Judge Neil Gorsuch for the position.

List of failed, stalled or filibustered appellate nominees[edit]

Failed nominees[edit]

Successfully appointed nominees[edit]

  • United States Court of Appeals for the District of Columbia Circuit
    • Patricia Millett to a seat vacated by the elevation of John G. Roberts, Jr., and Nina Pillard, to a seat vacated by Douglas H. Ginsburg: in November 2013 Republicans blocked the nomination of three nominees by filibustering.[38] Republican Senators have called Obama's nominations "court packing", which evokes but is not analogous to Franklin D. Roosevelt's Judicial Procedures Reform Bill of 1937, despite Obama exercising his constitutional right to fill existing judicial vacancies.[39] As a response to these actions Sen. Harry Reid on November 21, 2013 invoked the so-called Nuclear option and changed the Senate rules, meaning a simple majority vote will suffice for all nominees except for the Supreme Court.[5] Millet and Pillard were confirmed respectively on December 10, 2013 (Millet 56–38, with Republican Senators Collins and Murkowski voting to confirm as well) and December 11, 2013 (Pillard, 51-44).
    • Robert L. Wilkins to a seat vacated by David B. Sentelle: in November 2013 Republicans blocked the nomination of Wilkins by filibustering.[38] On November 14, 2013, Senate Majority Leader Harry Reid motioned to invoke cloture on Wilkins' nomination, seeking to end a filibuster of his nomination by Senate Republicans. The Senate failed to invoke cloture on November 18, 2013 by a vote of 53-38, with 1 senator voting "present".[40] Republican Senators have called Obama's nominations to the DC Court "court packing", which evokes but is not analogous to Franklin D. Roosevelt's Judicial Procedures Reform Bill of 1937.[39] As a response to these actions Sen. Harry Reid on November 21, 2013 invoked the so-called Nuclear option and changed the Senate rules, meaning a simple majority vote will suffice for all nominees except for the Supreme Court.[5] Reid planned to hold a vote on Wilkins' nomination before the Senate adjourned for the year on December 20, but the vote did not take place. Cloture was subsequently invoked on January 9, 2014 by a vote of 55-38, with 1 senator voting "present". He was confirmed by the United States Senate 55-43 on January 13, 2014.[41] His confirmation marked the first time the U.S. Court of Appeals for the D.C. Circuit had a full complement of judges in over 22 years since Clarence Thomas left the court on October 23, 1991 upon his joining the United States Supreme Court.
  • United States Court of Appeals for the Third Circuit
    • Patty Shwartz (of New Jersey), to seat vacated by Maryanne Trump Barry: New Jersey Sen. Bob Menendez, a Democrat, had not returned his blue slip—effectively blocking the nomination, since nominations do not go forward without the support of home-state senators, which comes in the form of a blue slip that is returned to the United States Senate Committee on the Judiciary.[42] In January 2012, The New York Times reported that Menendez had not given a reason for not returning his blue slip, and noted that Shwartz long had been in a relationship with the head of the public corruption unit for New Jersey's federal prosecutor. That was the unit that investigated Menendez during his 2006 election fight—an investigation that Menendez contended was politically motivated.[42] On January 13, 2012, Menendez announced that he had dropped his opposition to Shwartz's nomination and would be returning his blue slip.[43] On February 15, 2012, Shwartz received a hearing before the Senate Judiciary Committee. On March 8, 2012, the Judiciary Committee reported her nomination to the floor of the Senate by a vote of 10 ayes to 6 nays. On January 2, 2013, her nomination was returned to the President, due to the sine die adjournment of the Senate.[44] On January 3, 2013, she was renominated to the same office. Her nomination was reported to the floor by the Senate Judiciary Committee on February 14, 2013, by a vote of 11 ayes to 7 nays.[45] The Senate had ultimately approved the nomination on April 9, 2013 by a 64-34 vote.
  • United States Court of Appeals for the Fourth Circuit
    • Barbara Milano Keenan (of Virginia), to seat vacated by H. Emory Widener: Keenan was nominated on September 14, 2009.[46] Cloture was successfully invoked on March 2, 2010 by a vote of 99-0,[47] and Keenan was confirmed later that day by a vote of 99-0.[48] Keenan's nomination was not considered controversial,[49] but was subjected to what Virginia Senator Mark Warner called "unnecessary filibusters that came to an end with two unanimous, bipartisan votes."[49] Prior to Obama's successful appointment of Keenan, President George W. Bush had unsuccessfully nominated three separate individuals to succeed Judge Widener: William J. Haynes, who was initially nominated in September 2003 and withdrew from consideration in January 2007; E. Duncan Getchell, who was nominated in September 2007 and withdrew from consideration in January 2008; and Glen E. Conrad, whose nomination in May 2008 expired at the end of Bush's presidency in January 2009.
  • United States Court of Appeals for the Seventh Circuit
  • United States Court of Appeals for the Ninth Circuit
    • Andrew D. Hurwitz (of Arizona), to seat vacated by Mary M. Schroeder: Some Republican senators had objected to Hurwitz and required a cloture vote on his nomination because of his role some 40 years earlier as a young law clerk. Hurwitz had been a law clerk for then-U.S. District Judge Jon O. Newman, and in a 2002 law review article, Hurwitz wrote that he had helped to write—and still admires the legal framework for—Newman's opinion striking down Connecticut's abortion law, just a year before the U.S. Supreme Court decided Roe v. Wade.[56] Both of Hurwitz's home-state senators have supported his nomination, but other Republican senators have objected to it.[57] After a Republican filibuster on Hurwitz's nomination, senators voted 60-31 on June 11, 2012 to invoke cloture and break the filibuster.[58] Senators then confirmed Hurwitz on June 12, 2012 in a voice vote.[59]
  • United States Court of Appeals for the Tenth Circuit
    • Robert E. Bacharach (of Oklahoma), to seat vacated by Robert Harlan Henry. Bacharach was blocked by Senate Republicans in a 56-34 cloture vote on July 30, 2012, with 60 votes needed to break the filibuster.[60] The reason for the Republican filibuster was their contention that the consideration of Bacharach's nomination had come too late in a presidential election year, per the informal Thurmond Rule.[61] He was eventually confirmed by the Senate in February 2013.
  • United States Court of Appeals for the Eleventh Circuit
    • Adalberto Jordan (of Florida), to seat vacated by Susan H. Black. Jordan's nomination was the subject of a filibuster by Senate Republicans who were angry by unrelated recess appointments by President Obama in early January 2012. On February 9, 2012, Senate Majority Leader Harry Reid motioned to invoke cloture on Jordan's nomination, thereby ending the filibuster. Cloture was achieved in an 89–5 vote on February 13, 2012,[62] and the Senate confirmed Jordan on February 15, 2012 in a 94–5 vote.[63]
    • Jill A. Pryor Originally nominated February 16, 2012 to a seat vacated by Stanley F. Birch. Georgia's two Republican senators Johnny Isakson and Saxby Chambliss refused to return their blue slips, thus preventing a hearing and effectively blocking her nomination.[64] In September 2013 it was reported that a deal was in the works between the White House and the Senators to ensure a hearing on the Pryor nomination and to fill the other district court vacancies within Georgia, thus upsetting those in the Georgia's Democratic delegation.[65] On May 13, 2014 a hearing was held on her nomination by the Senate Judiciary Committee. On June 19, 2014 her nomination was reported out of committee by voice vote. On July 30, 2014, Senate Majority Leader Harry Reid motioned to invoke cloture on Pryor's nomination. On July 31, 2014, the Senate voted 58-33 for cloture on Pryor's nomination. On September 8, 2014 the Senate voted 97-0 in favor of final confirmation.

List of failed, stalled or filibustered district court nominees[edit]

Failed nominees[edit]

Successfully appointed nominees[edit]

Effects of vacancies[edit]

A 2016 study found the current rate of federal judge vacancies (10 percent) had led prosecutors to dismiss more cases, and defendants to be more likely to plead guilty and less likely to be incarcerated.[107] The authors find that "the current rate of vacancies has resulted in 1,000 fewer prison inmates annually compared to a fully-staffed court system, a 1.5 percent decrease."[107]

See also[edit]

References[edit]

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