What Next?

By Goldman, Sheldon; Slotnick, Elliot et al. | Judicature, May/June 2011 | Go to article overview

What Next?


Goldman, Sheldon, Slotnick, Elliot, Schiavoni, Sara, Judicature


What then, does the future hold for the Obama judicial selection process and its prospects for "doing better" in the second half of the administration's first term, the 112th Congress? For the OLP's Christopher Schroeder, the glass is both half empty and half full. "The good news is that there will be more time to spend on nominations. The bad news is that it will be harder to get nominations through."

With the Spring of 2012 looming as the time when the curtain for confirming judges is likely to come down in anticipation of the presidential election, Schroeder notes that, "I don't know what the incentive is for the opposition to change its tactics for the 112th Congress." Danielle Cutrona, Minority Chief Counsel for Nominations for ranking Senate Republican on the Judiciary Committee Jefferson Sessions, agreed noting:

I just can't imagine that it won't be a priority for the administration.. .with all the outcries from the groups about the pace and whatnot. I just cannot imagine that there won't be a flood of nominations in the next Congress.

Cutrona added, however, "I just can't imagine there would be a huge change in the scrutiny" during Senator Charles Grassley's watch as ranking minority member with proportionately higher Committee and Senate Republican strength.

Curt Levey saw a similar impetus for the President acting aggressively, yet was uncertain whether he would, given his seeming distaste for the likely engagement:

One possibility is that he will feel like he has to, especially with die presidential election coming up.. .need to energize die base.... Maybe they will convince themselves that as long as we are going to have low confirmation rates, we might as well nominate some really bad guys, more really bad guys. And I guess there is something to be said for that.

In Levey's view, as long as the Democrats retain a Senate majority, the Republicans can only stop so many and must pick and choose whom to filibuster with the resources at hand. Whether the Democrats will press that advantage, according to Levey, was an open question. "There will be a lot of fights and, again, I don't get a sense he has any more stomach on the social issues than he had before."

If Levey's guess is right, this will not sit well with the President's basesupporting groups such as the Alliance for Justice. According to Nan Aron:

I don't think he has a choice. If he wants to win re-election he has to step up to the plate, not only on this, but on jobs. He has to put on his boxing gloves and fight. If he doesn't, he's gone.

Beyond the imperatives of electoral politics, Aron sees ample reason for the judges issue to gain leverage:

There could be a stepped up national debate on judicial nominees because, in effect, this could be one of the few items Democrats can take up with Obama taking a less active role legislatively there could be opportunities....This issue will become more high profile as the Obama legislative agenda slows down, number one. Number two, if...die numbers continue to pile up m terms of vacancies and pending nominees, the Senate will be forced to hold votes, whedier they like it or not. They'll have to schedule votes.

Offering another perspective, the Asian American Justice Center's Vincent Eng noted the difficulties of responding to the absence of overwhelming legislative priorities. "Now there's multiple goals and trying to re-shift and reorganize around that takes time." Eng further observed that not responding successfully, "with respect to putting their resources behind the nominees," will lead them uto just fade away," with broadly damaging consequences for the president:

I think it...resonates poorly for world politics if you have a president who is being rolled on his nominations which is, for most countries... "What is diat? Can this president be rolled on other things as well?"....I diink when you look at die greater context, getting rolled on something like this has. …

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