The Senate votes Tuesday on whether to end a Republican filibuster of President Obama's first judicial nominee, David Hamilton. The story of the Hamilton nomination is just part of a larger judicial nomination picture that shows the president slow on nominating judges and Republicans adept at stalling tactics.
Hamilton has served for 15 years as a federal district court judge in Indiana. He is so widely respected that Sen. Richard Lugar, a Republican, strongly endorsed his nomination, as did the state president of the conservative Federalist Society. At the confirmation hearing, Lugar praised Hamilton's "brilliance," "fairness" and commitment to law. "He is the type of lawyer and the type of person one wants to see on the federal bench," Lugar said.
Lugar, noting that he had made a similar introduction of now-Chief Justice John Roberts at his confirmation hearings, used the words of the nation's founders to warn his Senate colleagues against allowing "the pestilential breath of faction to poison the fountains of justice."
Tuesday, Lugar is expected to be among just a handful of Republicans who will vote to end the filibuster of Hamilton's nomination.
It takes 60 votes to end a filibuster and allow an up-or-down vote on a nomination. Democratic filibusters of some of President George W. Bush's judicial nominees so infuriated Republicans that they threatened to do away with the century-and-a-half-old rule, using an end run that came to be known as the "nuclear option."
In 2005, Republicans spoke for days about the insult of the judicial filibuster, calling it unconstitutional. Sen. Mitch McConnell of Kentucky, now the Senate Republican leader, said in 2005 of the Democrats: "For the first time in 214 years they've changed the advise and consent responsibilities to advise and obstruct."
North Carolina's Richard Burr, like many other Republicans, said the debate was about "fairness" and "about principle and .... allowing judicial nominees an up-or-down vote on the Senate floor."
And the man who is now the ranking Republican on the Senate Judiciary Committee, Jeff Sessions of Alabama, contended that "the Republican leadership have been consistent on this issue even when it was not to their political benefit to do so. We have opposed judicial filibusters and have not supported them."
In the end, a group of seven Democrats and seven Republicans negotiated a compromise under which both parties agreed not to filibuster any judicial nominee except in extraordinary circumstances.
Now, many Republicans are maintaining that Hamilton presents just such an extraordinary circumstance — and Sessions said Monday that regardless, Republicans no longer feel bound by the earlier agreement.
Last week he issued a kind of call to arms at the conservative Federalist Society meeting in Washington, D.C. "I cannot and will not allow the easy confirmation of an individual who seeks a lifetime appointment to use that power of office to advance their own social or political agenda," Sessions said.
Among the particulars against Hamilton is the fact that he worked for ACORN, the embattled community activist group, for one month as a canvasser 30 years ago — the year he graduated from college. Also, in 2005 he ruled that official prayers in the Indiana state Legislature had violated the separation of church and state because they were mainly Christian.
Assuming the filibuster is broken and Hamilton is confirmed, as expected, he will be only the third Obama appeals court nominee to win confirmation so far.
Republicans have artfully dragged their feet on judicial nominations. The first two appeals court nominees to be confirmed this fall were so uncontroversial that each was easily approved by a bipartisan vote in the Senate Judiciary Committee. Yet each waited months for a vote by the full Senate because Republicans blocked floor action.
When President Bush encountered what he thought was foot-dragging on judicial nominations, he rhetorically pounded the table in public, and Republicans set up an outside group to target Democratic opponents. From the start, Bush highlighted his judicial nominees, announcing the first 11 in a Rose Garden ceremony and overtly pushing a conservative agenda.
President Obama has played the game very differently. While Bush in essence played an outside game, Obama has played an inside game — quietly clearing the nominations with home-state Republicans, and seeking out nominees who are moderate liberals.
But the process so far has yielded dramatically fewer numbers of nominees and confirmations.
By this time in Bush's first year in office, he had nominated a total of 64 judges, compared with 26 for Obama. By this time, Bush had won confirmation of 18, including both appeals court and district court judges, compared with six for Obama. The numbers assume an even greater disparity when you realize that Obama has a hefty Senate majority of Democrats, while Bush actually faced a Democratic-controlled Senate in 2001.
Democratic interest groups — labor, consumer, environmental, civil rights and civil liberties groups — are increasingly unhappy about the president's unwillingness to pick more distinctly liberal nominees, and about the continued Republican dominance of the courts at a time when Democrats finally have the chance to make some of these lifetime appointments.
"It takes two to tango," says Doug Kendall of the Constitutional Accountability Center, a liberal think tank. "If the Republicans are going to filibuster even the consensus nominees that President Obama picks, he's going to have to change his strategy."
The White House, for its part, defends its record, noting that unlike Bush, Obama in his first year had a Supreme Court nomination to deal with. Obama White House aides say that their confirmation numbers by the end of the year will be similar to Bush's. That's true, concede Democratic sources on the Senate Judiciary Committee, but they observe that another Supreme Court vacancy is likely in the coming months and the pipeline of judicial nominees is so thin it is close to a drizzle.
Still, while liberal groups agitate about both the White House and the Senate leadership's unwillingness to confront the issue head on, others point to the heavy legislative agenda — health care, energy, financial reform — that is pending in the Senate.
In some ways, that makes the relative lethargy about judgeships even more puzzling to many conservatives, as well as liberals. Michael McConnell was in that first group of conservative judges appointed by President Bush in 2001. Now a professor at Stanford Law School, he says that on the rare occasions that a president comes into office with a real agenda — he names Franklin Delano Roosevelt, Ronald Reagan and Obama — then the courts can become a check on that agenda.
The courts, he observes, "were named by past presidents and confirmed by past Senates with different political ideas," so when new legislation or regulations are subjected to judicial scrutiny, those courts, populated by nominees of the past, are "going to serve as a kind of break to slow things down, sometimes to change directions."
To cite just one example from the Reagan administration's deregulation agenda, President Reagan sought to get rid of the requirement for air bags in automobiles — only to be blocked by the D.C. Court of Appeals.
That court has two openings right now. Neither has been filled by President Obama.