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Are Republicans Beating Obama in War for Judicial Dominance?

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by Publius
Posted October 05, 2012, 1:44 PM

Joan Biskupic writes for Reuters:

When Barack Obama was elected president, critics and supporters alike thought the Democrat would move swiftly to appoint strong liberal judges to balance out Republicans' longstanding push for a conservative judiciary. At the nation's 13 powerful U.S. appeals courts, that has not happened.

Obama's 30 appointees have generally been moderates who mainly served on lower courts and were often selected in consultation with Republican senators. The pattern contrasts with Obama's Republican predecessors, dating back to Ronald Reagan, who quickly put forth prominent young conservatives, many of whom came from academia and had past political experience.

Notably, President Obama has not added a single judge to the powerful U.S. Court of Appeals for the District of Columbia Circuit, where there are three vacancies on an 11-member panel dominated by Republicans. He is about to become the first president in at least half a century to finish a full term without an appointment to the bench known as the nation's second highest. The D.C. Circuit often has the last word on a president's domestic agenda and has been a stepping-stone for Supreme Court justices.

Administration officials say that while the president wants to change the balance in the courts, he does not want protracted fights with Republicans in the deeply divided Senate, which votes on federal judicial nominations. Officials also say that the president was focused on the healthcare overhaul and legislation to address the financial crisis.

"There were competing priorities," said White House counsel Kathryn Ruemmler. "It's like anything else in life: Something has to give."

Of the D.C. Circuit, she said: "In an ideal world, if the only thing that anyone cared about were getting judges confirmed, we would have had a nominee in 2009." Supreme Court vacancies in 2009 and 2010 also were diversions, Ruemmler said.

Public attention to the judiciary naturally focuses on the Supreme Court, which sets the law of the land and where Obama appointees Sonia Sotomayor and Elena Kagan sit. They both vote generally with the liberal wing.

But the justices hear less than 1 percent of appeals, so the country's appeals courts often have the last word on a case and in establishing legal principles. U.S. district court judges, on the first step of the three-tier federal judiciary, rule on individual cases and do not set precedent.

On the DC Circuit, where there are five Republican appointees and two of the three Democratic appointees are in their 70s, two vacancies existed when Obama took office in January 2009.

It was not until September 2010, nearly halfway through his term, that he made his first nomination: Caitlin Halligan, now 45, general counsel for the Manhattan district attorney's office and a former solicitor general of the state of New York. Republicans blocked her nomination in 2011, and Obama has since renominated her. If Obama wins reelection, he would likely continue to back Halligan, but her fate depends on whether GOP senators continue to resist. Democrats now hold a slight majority in the Senate, and it takes a supermajority, 60 votes, to cut off debate and hold a straight up or down vote on a nominee.

In June, Obama offered a nominee for one of the other D.C. Circuit vacancies, Sri Srinivasan, principal deputy U.S. solicitor general. Srinivasan is supported by Republicans including former two solicitors general, Paul Clement and Theodore Olson. A third vacancy arose with the semi-retirement of Douglas Ginsburg, a Reagan appointee, in October 2011, and Obama has yet to nominate a replacement.

Liberals have criticized Obama, who was the first black president of the Harvard Law Review and taught constitutional law at the University of Chicago, for what they see as foot-dragging. At a recent legal conference, Walter Dellinger, a former top Justice Department lawyer in the Clinton administration, called the lost early opportunity at the D.C. Circuit "an act of judicial-political malpractice that should be legendary."

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