One who argued often for Barack Obama to be elected to add to the caliber of
our federal judiciary, as much as any other reason, and who repeated that urging
after he was elected, has reasons to be discouraged by his record to date. President
Obama inherited 55 vacancies on the federal courts when he took office. A year later,
there were 98 vacancies, 20 on appellate courts and 78 at the trial courts.
According to the liberal judicial selection organization Alliance for Justice,
today there are 101 vacancies, and 25 more are about to occur because judges
have notified the president of their impending departure — making 126 in all.
The president is not completely at fault for this dismal record. A minority of the Senate (likely to be strengthened in the next election) has managed to outmaneuver the Democrats’ strong majority and stall numerous presidential appointments. Today, 24 appointments are pending, and the confirmation process has been arduous. The attention given to Solicitor General Kagan’s highly visible appointment is likely to slow lower court confirmations for months.
Important as it is in our government of tripartite, shared power, with federal judges enjoying unique lifetime appointments, the Senate has a duty to exercise its confirmation power prudently. But it also has the obligation to the public not to manipulate and pervert its legitimate power for partisan, bad-faith purposes.