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President Obama has been relative slow to nominate federal judges, which has turned out not to matter much yet, because Republicans have been adept at stalling tactics in confirming them. This ongoing battle will play out today in the Senate, where members plan to vote on whether to end the Republican filibuster.
That filibuster is blocking the presidents first judicial nominee, David Hamilton. Hamilton was chosen for promotion to the appeals court in part because of strong Republican support in his home state. Yet Hamilton has been waiting seven months for a vote in the Senate. Heres NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: David Hamilton has served for 15 years as a federal district court judge in Indiana. The states Republican Senator Richard Lugar, along with the state president of the conservative Federalist Society, strongly endorsed his nomination. At the confirmation hearing, Lugar praised Hamiltons brilliance and fairness.
Senator RICHARD LUGAR (Republican, Indiana): David Hamilton is the type of lawyer and the type of person one wants to see on the federal bench.
TOTENBERG: Lugar, noting that he had made a similar introduction of now-Chief Justice John Roberts at his confirmation hearing, used the words of the nation's founders to warn his Senate colleagues against allowing, quote, "the pestilential breath of faction to poison the fountains of justice."
Today, 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 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. Here, for example, is the now-Senate Republican leader Mitch McConnell.
Senator MITCH MCCONNELL (Republican, Kentucky): For the first time in 214 years, they've changed the Senates advise-and-consent responsibilities to advise-and-obstruct.
TOTENBERG: And North Carolina's Richard Burr.
Senator RICHARD BURR (Republicans, North Carolina): This debate is about principle. Its about allowing judicial nominees an up-or-down vote on the Senate floor. And I believe its an issue of fairness.
TOTENBERG: And the man whos now the ranking Republican on the Senate Judiciary Committee, Jeff Sessions.
Senator JEFF SESSIONS (Republican, Alabama): And the Republican leadership have been consistent on this issue, even when it was not to their political benefit to do so. We have opposed the idea of filibusters and have not supported them.
TOTENBERG: In the end, a group of seven Democrats and seven Republicans finally negotiated a compromise under which both parties agreed not to filibuster any judicial nominee except in extraordinary circumstances.
Now, many Republicans are maintaining that David Hamilton is just such an extraordinary circumstance, and that regardless, theyre not bound by the earlier agreement.
Senator Sessions issued a kind of call to arms last week at the conservative Federalist Society meeting in Washington.
Sen. SESSIONS: 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.
TOTENBERG: Among the particulars against Hamilton is the fact that he worked for ACORN for one month as a canvasser 30 years ago - the year he graduated from college - and that 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 that the filibuster is broken and that 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 a floor vote.
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, Mr. 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 Mr. Bush, in essence, played an outside game, Mr. Obama has played more an inside game: 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 President Bush's first year in office, he had nominated a total of 64 judges, compared to 26 for Mr. Obama. By this time, Bush had won confirmation of 18, including both appeals court and district court judges, compared to six for Mr. Obama. The numbers assume an even greater disparity when you realize that President Obama has a hefty Senate majority, while Bush actually faced a Democratically-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.
Doug Kendall is president of the Constitutional Accountability Center, a liberal think tank.
Mr. DOUG KENDALL (President, Constitutional Accountability Center): I think President Bush made a conscious effort to pick fights over this issue, and I think President Obama has taken the opposite track. But it takes two to tango in that. And if Republicans are going to filibuster, even the consensus nominees that President Obama picks, he's going to have to change his strategy.
TOTENBERG: The White House, for its part, defends its record, noting that unlike President Bush, President Obama in his first year had a Supreme Court nomination to deal with. 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 that the pipeline of judicial nominees is so thin, its 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 - thats pending in the Senate.
In some ways, that makes the relative lethargy about judgeships even more puzzling to many liberals and conservatives. 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 occasion when a president like Roosevelt, Reagan, or Obama comes into office with a real agenda, then the courts can become a check on that agenda.
Professor MICHAEL MCCONNELL (Stanford Law School): The courts that were named by past presidents and were confirmed by past Senates with different political ideas are going to serve as a kind of break to slow things down, sometimes to change directions.
TOTENBERG: To cite just one example from the Reagan administration's deregulation agenda, Mr. 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.
Nina Totenberg, NPR News, Washington.
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