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Debating the Politics of Confirming President Obama’s Judicial Nominees

August 24, 2011 at 12:00 AM EST
At this point in his presidency, the pace of President Obama's judicial appointees being confirmed is behind that of George W. Bush and Bill Clinton. Judy Woodruff discusses the politics of confirmation with Curt Levey of the Committee for Justice and Caroline Fredrickson of the American Constitution Society for Law and Policy.
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RAY SUAREZ: And to the politics of confirming the president’s judicial nominees.

Judy Woodruff is in charge.

JUDY WOODRUFF: When the U.S. Senate left Washington for its summer recess, it had confirmed 97 of President Obama’s judicial appointees, compared to 144 for George W. Bush and 165 for Bill Clinton at this point in their presidencies.

There are currently 91 judicial vacancies, 60 percent of which have nominees awaiting action in the Senate.

We get two different takes on the process now from Caroline Fredrickson. She’s executive director of the liberal legal group the American Constitution Society for Law and Policy. And Curt Levey, he’s executive director of the Committee for Justice, a conservative legal organization.

And we thank you both for being here.

CURT LEVEY, Committee for Justice: Thank you.

CAROLINE FREDRICKSON, American Constitution Society for Law and Policy: Thank you for having us.

JUDY WOODRUFF: Let me just start by asking, how much worse is the vacancy problem now than it was under previous presidents, Caroline?

CAROLINE FREDRICKSON: Well, admittedly, at the beginning of President Bush’s first administration, the vacancy rate was approximately at the same level.

At the end of the Clinton administration, there was almost a 10 percent vacancy rate, and that’s what President Bush inherited. But over the course of his two administrations, they worked that down, with the cooperation of the Democrats, clearly, to less than four percent.

So when we’re over 10 percent now, that’s a very significant crisis.

JUDY WOODRUFF: Curt Levey, is it significant and is it a crisis?

CURT LEVEY: Well, I don’t think the numbers are quite as disparate as Caroline says.

But I think let’s even assume that vacancies are higher right now. I don’t think it has much to do with anything the Republicans are doing. It has to do with a very slow nomination pace by the Obama administration. Obama is not making confirmations a priority, nor is Sen. Reid, the majority leader.

Also, there’s just been, let’s face it, a general breakdown in courtesy in the Senate. And so all issues get affected, including judges. And there were also two Supreme Court vacancies in Obama’s first two years, which, for about six months…

CURT LEVEY: … focus…

JUDY WOODRUFF: Used up a lot of the energy.

CURT LEVEY: Right. Exactly.

JUDY WOODRUFF: Caroline Fredrickson, what about this notion that some of the fault here lies with the slowness of the nomination process?

CAROLINE FREDRICKSON: Well, I think, Judy, at the beginning, you mentioned that there were well over 50 nominees pending now in the Senate. And I think that is a very good number to look at.

In fact, there are 20 that are pending on the calendar before a full Senate vote, 16 of whom came out of the Judiciary Committee unanimously. Many of those are holdovers from the last Congress. I think those people should be immediately confirmed. We’re talking about, many of them, 10 of those who represent — who would be filling judgeships where there are emergencies. And that needs to be addressed right away.

JUDY WOODRUFF: So you’re saying it’s not a slowness in the nominating process?

CAROLINE FREDRICKSON: I don’t think there’s evidence of that.

Now, I would say, at the beginning of President Obama’s administration, he did come out of the box fairly slow. And I think part of that is attributable to, as Curt says, some — the general obstructionism in the Senate, where you had even the person to head the Office of Legal Policy in the Justice Department, which is the main office responsible for vetting judicial nominees, he was held up for over a year.

That really gave them a big hurdle to climb over to get the process started.

JUDY WOODRUFF: What about that, Curt Levey, that there’s just been a problem from the beginning here?

CURT LEVEY: Well, I think that problem from the beginning is still reflected.

For example, Caroline accurately pointed out that there are 20 pending who have gotten out of committee. But that’s only 20 out of 91 vacancies. And all but one of those 20 are just a matter of weeks or, at most, a couple of months, which is a very short time historically. I mean, there are many of Bush’s nominees who waited literally years after they got out of committee.

There were some nominees who were waiting throughout most of the eight years. So the fact that there’s only one out of the 20 who’s even been waiting three months I think tells you that things are going fast. I mean, could they go a little bit faster? Sure. I don’t think they could really go much faster, though.

JUDY WOODRUFF: How much does it matter, Curt Levey, that there are these vacancies right now?

CURT LEVEY: Well, look, no point in having any vacancies that aren’t necessary, in the sense of there being no nominee or a controversial nominee that needs to be scrutinized.

On the other hand, we’re talking about whether 90 percent of the seats in the federal judiciary are filled or 95 percent. And I guess I have never been convinced under either a Republican or a Democratic administration that it makes an enormous difference, some slight difference, but not an enormous once.

JUDY WOODRUFF: Slight difference?

CAROLINE FREDRICKSON: Well, I think that’s definitely not stating the full truth of the matter.

Thirty-seven of those vacancies represent judicial emergencies. And that is a term that’s been defined by the Administrative Office of the Courts to represent an extremely high caseload. And what that means, what that translates into for ordinary Americans is an extremely long wait before their vital case can get heard.

We have had stories of — in fact, there was a federal judge who died in his chambers in his 90s because he was desperately trying to hear the Social Security appeals that were in front of him. That is a situation that is affecting people in their real everyday lives.

CURT LEVEY: I do agree that judicial emergencies should be given priority. But, again, let’s remember that judicial emergency is not just defined by caseload. It’s also defined by how long the vacancy has existed. And, again, that vacancy may have existed for a long time because Obama was very slow to appoint a nominee.

JUDY WOODRUFF: But I want to get to this question of affecting real people in their real lives.

Are you saying, Caroline Fredrickson, that people are suffering as a result of this?

CAROLINE FREDRICKSON: Well, I do think so. And I think we forget sometimes that our attention is so much on the political branch — branches of government. We focus on elections. We focus on the presidential race, the straw poll in Iowa.

JUDY WOODRUFF: Right.

CAROLINE FREDRICKSON: We look at what’s going on in Congress, but we forget that we have an entire other branch that exists for an extremely important purpose: to adjudicate these important cases.

And I think when we have a situation when our economy is in duress, people actually have really important reasons to get into a courtroom, and the waits are just inexcusable.

JUDY WOODRUFF: You’re smiling a little bit here.

CURT LEVEY: Not — not particularly.

I don’t know that I totally disagree. Again, there’s — why have any higher vacancy rate than is necessary? I just think that, over the year, even when I have been tempted to use judicial emergencies as a statistic under Bush, I was never really convinced that, again, whether 90 percent of the seats are filled or 95 percent, that it has a huge impact.

But I will agree; let’s fill all the vacancies that we can.

JUDY WOODRUFF: What are the prospects going forward, Curt Levey? I mean, right now, Washington seems to be locked in this partisan warfare. We have all been hearing and we have been watching it before our very eyes.

Is that and the prospect of the fact that we’re going into an election, does that mean that the prospects are not good for breaking through here? Or what do you see?

CURT LEVEY: Well, they have actually gotten better, believe it or not, now that Republicans control the House. I think, before that, the GOP saw itself as nothing but a minority party whose job was, frankly, to some degree, to slow things down. And I think they have been much more likely to work towards being bipartisan in this Congress.

Now, I don’t know if — you know, given all the other things they’re fighting about, I’m not sure if it’s really been noticed, but they have confirmed — they confirmed a lot of judges right before Christmas. And they have confirmed a good number of judges in the half-a-year since this Congress took office.

So, I think, for the rest of this year, things should probably go pretty smoothly. Once we get into an election year, though, things always slow down, both because people’s attention is in other places, and also because the party out of power thinks, if I can just keep this vacancy open for another year, maybe my president will fill it.

JUDY WOODRUFF: What do you think it looks like going forward?

CAROLINE FREDRICKSON: Well, I would like to be hopeful.

I think it’s unfortunate when Curt can suggest that the Republicans thought that their job as the minority party in the Senate was obstruction. I think that doesn’t reflect well on the Senate as a whole and it doesn’t serve the American people.

I would also say that I don’t think we should accept it as status quo that our judicial branch can be neglected and vacancies can go unfilled simply because we’re in an election year. And when Sen. Leahy was chairman of the Judiciary Committee and President Bush was the president, Chairman Leahy moved nominees through the committee, and they moved to the floor of the Senate, and were confirmed.

And I think that’s the model that we should follow.

CURT LEVEY: I just want to clarify one thing, which is I said slow things down, not sort of just say no. At the end of the day, these nominees, with the exception of the few controversial ones, all get confirmed.

I do think that when a party is completely out of power, it is the job of that party to be skeptical. It’s not in a position to make the other party work with it, so it’s its job to be skeptical. But, at the end of the day, they didn’t really stop people the way the Democrats stopped permanently Bush judicial nominees.

JUDY WOODRUFF: Ten seconds on that?

CAROLINE FREDRICKSON: Well, I think the record stands for itself. The vacancy went — vacancy rate went down below four percent under President Bush, and it stands above 10 percent for President Obama.

JUDY WOODRUFF: All right, we are going to have to leave it there, but we thank you both for being with us.

CURT LEVEY: Thank you very much.

JUDY WOODRUFF: Curt Levey, Caroline Fredrickson, appreciate it.

CAROLINE FREDRICKSON: Thank you very much.

JUDY WOODRUFF: Thank you.