OBAMA'S JUDICIARY at MIDTERM

Article excerpt

THE CONFIRMATION DRAMA CONTINUES

When Barack Obama assumed the presidency on January 20, 2009, he inherited a country struggling with an economy on the brink of reprising the Great Depression of the 1930s, two middle-eastern wars, crushing deficits, a lopsided tax policy that favored the wealthy and deprived the country of badly needed tax revenue, a health care crisis, and myriad other problems. President Obama also inherited a poisonous political climate where hyperpartisanship put party above the public interest and had trumped civility and compromise.

The new president promised a new direction and the electorate gave him not only a decisive endorsement to pursue that direction and the agenda he had articulated in the campaign but also a Congress controlled by Democrats by large majorities. Part ofthat agenda, although not given much media attention at the time, was to use judicial appointments to further ethnic and gender diversity on die bench.1 As the data reported in this article clearly reveal, at the end of President Obama's first two years in office, for die first time in American history, women and ethnic minorities who togetfier constitute a large majority of the population, received die large majority of judicial appointments.

But President Obama's first two years in office were not easy ones. His ambitious agenda met with stiff resistance from a defiant and stubborn Republican minority in the Senate whose secret holds, threats of filibusters, and deft use of Senate procedures were used to slow down if not stymie the Obama agenda including staffing the judiciary. The Administration also had difficulties in fashioning effective and efficient judicial selection machinery.

Our purpose in this article, consistent with the series of articles on judicial selection- that have appeared in this journal since 1978, is to illuminate the process by which federal judges were chosen and the appointees who emerged from it during the first two years of the Obama Administration and the 111th Congress. We do this by way of extensive interviewing of key players and observers of the process and also by a statistical analysis of the biographical/demographical data of those confirmed by the 111th Congress. The findings for the Obama appointees are compared to those of the appointees of the previous four presidents.

Our interviews were conducted with officials in the Department of Justice and the Senate who participated in the nomination and/or confirmation processes. Tellingly, no one from the White House Counsel's office was able or willing to meet with us - the first time in our over 30 years of conducting our research on judicial selection that we have not had cooperation from that office. While the perspective from the White House Counsel's office would have been welcome, we believe that our other sources have enabled us to provide an accurate portrait of the successes and failures of the president's judicial selection team. Other sources included interest group participants from groups along the ideological continuum.

Data on the appointees were derived primarily from the questionnaires completed by the judicial nominees for the Senate Judiciary\ Committee. The Committee posts the questionnaires on line. Other sources of demographic or background data included newspaper articles, and various resources on line on die internet. Political party preference or affiliation was determined from either the questionnaires, newspaper sources, or, in some instances, from registrars of voters or boards of election for the geographic area of primary residence of the appointees.

We first examine judicial selection by the Obama Administration and compare die process with that used by Obama's predecessors in office. We then focus on confirmation politics and processes. This is followed by a demographic/background portrait of the district court appointees and then those appointed to the appeals courts. …