Barack Obama judicial appointment controversies

As of July 30, 2015, President Barack Obama has nominated over three hundred individuals for federal judgeships. Of these nominations, Congress confirmed three hundred and seven judgeships, 173 during the 111th & 112th Congresses^[1] and 134 during the 113th Congress.^[2] Of the outstanding 44 Court Vacancies, 12 Nominees were pending Congressional review and 32 were awaiting Presidential nomination.^[3] Ten percent of federal judgeships are currently vacant.^[4]

Through President Obama's presidency numerous filibusters have been brought to a cloture vote. Three cloture votes were successful in breaking the filibusters, while the cloture votes on the nominations of Goodwin Liu, Caitlin Halligan and Robert E. Bacharach failed. Many nominations expired with the adjournment of the 111th Congress, but all were renominated in the 112th Congress with the exception of Robert Chatigny. Senator Grassley commented more nominees could have been confirmed had President Obama respected recess appointment precedent by not making recess appointments while the Senate is in session.^[5] Although President Obama has never used a recess appointment to appoint a nominee to the federal bench, he had appointed some executive agency officials in January 2012.

As a response to the continuing blocking of several of President Obama's nominees, Sen. Harry Reid on November 21, 2013 invoked the so-called Nuclear option and changed the Senate rules, meaning a simple majority vote will suffice for all nominees except for the Supreme Court.^[6]

List of failed, stalled or filibustered appellate nominees

Failed nominees

• United States Court of Appeals for the Second Circuit
  • Robert Chatigny (of Connecticut), to seat vacated by Guido Calabresi: During the 111th Congress, Connecticut Senator Chris Dodd recommended Chatigny for a judgeship on the Second Circuit.^[7] Chatigny was nominated on February 24, 2010.^[8] His nomination was returned by the Senate on August 5, 2010. Chatigny removed his name from consideration,^[9] and he was not renominated when the 112th Congress convened.^[7] Critics of Chatigny's nomination highlighted his performance during the trial of serial killer Michael Bruce Ross, for whom Chatigny granted a temporary stay of execution.^[10] Obama later chose U.S. District Judge Christopher F. Droney to fill the seat to which Chatigny had been nominated, and the Senate confirmed Droney on November 28, 2011.^[11]
• United States Court of Appeals for the Ninth Circuit
  • Goodwin Liu (of California), to newly created seat: Liu was nominated on February 24, 2010.^[8] His nomination was returned by the Senate on August 5, 2010.^[12] Liu has faced opposition due to his support of same-sex marriage and affirmative action,^[12] and for his criticism of the Supreme Court nominations of John Roberts and Samuel Alito.^[13] Republican opposition to Liu is also due in part to his being considered a possible Supreme Court candidate.^[13] Liu was renominated at the start of the 112th Congress. On May 17, 2011, Senate Majority Leader Harry Reid filed for cloture on Liu's nomination, with 60 votes needed to proceed to an up-or-down vote on Liu's nomination. The cloture motion attracted only 52 of the 60 aye votes required. On May 25, 2011, Liu wrote to President Obama requesting that his nomination be withdrawn due to the improbability that he would receive an up-or-down vote.^[14] On July 26, 2011, Governor Jerry Brown nominated Liu to a seat on the Supreme Court of California,^[15] and he was sworn in on September 1, 2011.^[16] Obama later nominated U.S. District Judge Jacqueline Nguyen to the Ninth Circuit seat to which Liu had been nominated,^[17] and the Senate confirmed her on May 7, 2012.^[18]
• United States Court of Appeals for the Federal Circuit
  • Edward C. DuMont: DuMont was nominated to the Federal Circuit on April 14, 2010.^[19] The nomination languished for 18 months before United States Senate Committee on the Judiciary, which never scheduled a hearing on it, despite having had hearings and votes for two later nominees to the same court. A spokesperson for Senator Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, said in August 2011 only that "There are questions in Mr. DuMont's background investigation that have to be resolved."^[20] If confirmed, DuMont would have been the first openly gay United States appeals court judge.^[21] In November 2011, the National Law Journal reported that DuMont has submitted a letter to President Obama, asking that the president withdraw his nomination because one or more senators of the minority party on United States Senate Committee on the Judiciary refused to allow the committee to give him a hearing . Obama withdrew DuMont's nomination later that day .^[22] In November 2011, Obama nominated Richard G. Taranto to the seat to which DuMont had been nominated, and the Senate confirmed him on March 11, 2013.
• United States Court of Appeals for the Seventh Circuit
  • Victoria F. Nourse (of Wisconsin), to seat vacated by Terence T. Evans: After defeating Senator Russ Feingold in the 2010 midterm elections, Senator Ron Johnson blocked Nourse's nomination.^[23]
• United States Court of Appeals for the Tenth Circuit
  • Stephen Six (of Kansas), to seat vacated by Deanell Reece Tacha.^[24] Obama later chose Kansas Supreme Court Justice Nancy Moritz to fill the seat to which Six had been nominated, and the Senate confirmed Moritz on May 5, 2014.^[25]
• United States Court of Appeals for the District of Columbia Circuit
  • Caitlin Halligan (of New York), to seat vacated by John Roberts:^[26] Halligan was blocked by Senate Republicans in a mostly party-line filibuster in December 2011.^[27] Obama renominated Halligan to the D.C. Circuit in June 2012.^[28] The nomination was again returned to the President on August 3, 2012, as a result of Republicans refusing to allow the nomination to be held over during the Senate's extended summer recess.^[29] Obama renominated Halligan to the seat on September 19, 2012.^[30] On March 22, 2013, the President officially withdrew Halligan's nomination.^[31] On June 4, 2013 President Obama nominated Patricia Ann Millett to fill the vacancy. The Senate confirmed her on December 10, 2013.

Successfully appointed nominees

• United States Court of Appeals for the District of Columbia Circuit
  • Patricia Millett to a seat vacated by the elevation of John G. Roberts, Jr., and Nina Pillard, to a seat vacated by Douglas H. Ginsburg: in November 2013 Republicans blocked the nomination of three nominees by filibustering.^[32] Republican Senators have called Obama's nominations "court packing", which evokes but is not analogous to Franklin D. Roosevelt's Judicial Procedures Reform Bill of 1937, despite Obama exercising his constitutional right to fill existing judicial vacancies.^[33] As a response to these actions Sen. Harry Reid on November 21, 2013 invoked the so-called Nuclear option and changed the Senate rules, meaning a simple majority vote will suffice for all nominees except for the Supreme Court.^[6] Millet and Pillard were confirmed respectively on December 10, 2013 (Millet 56–38, with Republican Senators Collins and Murkowski voting to confirm as well) and December 11, 2013 (Pillard, 51-44).
  • Robert L. Wilkins to a seat vacated by David B. Sentelle: in November 2013 Republicans blocked the nomination of Wilkins by filibustering.^[32] On November 14, 2013, Senate Majority Leader Harry Reid motioned to invoke cloture on Wilkins' nomination, seeking to end a filibuster of his nomination by Senate Republicans. The Senate failed to invoke cloture on November 18, 2013 by a vote of 53-38, with 1 senator voting "present".^[34] Republican Senators have called Obama's nominations to the DC Court "court packing", which evokes but is not analogous to Franklin D. Roosevelt's Judicial Procedures Reform Bill of 1937.^[33] As a response to these actions Sen. Harry Reid on November 21, 2013 invoked the so-called Nuclear option and changed the Senate rules, meaning a simple majority vote will suffice for all nominees except for the Supreme Court.^[6] Reid planned to hold a vote on Wilkins' nomination before the Senate adjourned for the year on December 20, but the vote did not take place. Cloture was subsequently invoked on January 9, 2014 by a vote of 55-38, with 1 senator voting "present". He was confirmed by the United States Senate 55-43 on January 13, 2014.^[35] His confirmation marked the first time the U.S. Court of Appeals for the D.C. Circuit had a full complement of judges in over 22 years since Clarence Thomas left the court on October 23, 1991 upon his joining the United States Supreme Court.
• United States Court of Appeals for the Third Circuit
  • Patty Shwartz (of New Jersey), to seat vacated by Maryanne Trump Barry: New Jersey Sen. Bob Menendez, a Democrat, has not returned his blue slip—effectively blocking the nomination, since nominations do not go forward without the support of home-state senators, which comes in the form of a blue slip that is returned to the United States Senate Committee on the Judiciary.^[36] In January 2012, The New York Times reported that Menendez had not given a reason for not returning his blue slip, and noted that Shwartz long has been in a relationship with the head of the public corruption unit for New Jersey's federal prosecutor. That was the unit that investigated Menendez during his 2006 election fight—an investigation that Menendez contended was politically motivated.^[36] On January 13, 2012, Menendez announced that he had dropped his opposition to Shwartz's nomination and would be returning his blue slip.^[37] On February 15, 2012, Shwartz received a hearing before the Senate Judiciary Committee. On March 8, 2012, the Judiciary Committee reported her nomination to the floor of the Senate by a vote of 10 ayes to 6 nays. On January 2, 2013, her nomination was returned to the President, due to the sine die adjournment of the Senate.^[38] On January 3, 2013, she was renominated to the same office. Her nomination was reported to the floor by the Senate Judiciary Committee on February 14, 2013, by a vote of 11 ayes to 7 nays.^[39] The Senate has ultimately approved the nomination on April 9, 2013 by a 64-34 vote.
• United States Court of Appeals for the Fourth Circuit
  • Barbara Milano Keenan (of Virginia), to seat vacated by H. Emory Widener: Keenan was nominated on September 14, 2009.^[40] Cloture was successfully invoked on March 2, 2010 by a vote of 99-0,^[41] and Keenan was confirmed later that day by a vote of 99-0.^[42] Keenan's nomination was not considered controversial,^[43] but was subjected to what Virginia Senator Mark Warner called "unnecessary filibusters that came to an end with two unanimous, bipartisan votes."^[43] Prior to Obama's successful appointment of Keenan, President George W. Bush had unsuccessfully nominated three separate individuals to succeed Judge Widener: William J. Haynes, who was initially nominated in September 2003 and withdrew from consideration in January 2007; E. Duncan Getchell, who was nominated in September 2007 and withdrew from consideration in January 2008; and Glen E. Conrad, whose nomination in May 2008 expired at the end of Bush's presidency in January 2009.
• United States Court of Appeals for the Seventh Circuit
  • David F. Hamilton (of Indiana), to seat vacated by Kenneth F. Ripple: Hamilton was nominated on March 17, 2009.^[44] Cloture was successfully invoked on November 17, 2009 by a vote of 70-29,^[45] and Hamilton was confirmed on November 19, 2009 by a vote of 59-39.^[46] Hamilton's nomination generated opposition from groups who objected to some of his rulings while serving as a judge on the District Court for the Southern District of Indiana, particularly those dealing with abortion and prayer.^[47] However, Hamilton received the support of both Senators from Indiana,^[48] including Republican Senator Richard Lugar.^[49] Lugar was the only Republican to vote for final confirmation of Hamilton.^[46] Prior to Obama's successful appointment of Hamilton, President George W. Bush had unsuccessfully nominated Philip P. Simon to succeed Judge Ripple, who assumed senior status in September 2008.
• United States Court of Appeals for the Ninth Circuit
  • Andrew D. Hurwitz (of Arizona), to seat vacated by Mary M. Schroeder: Some Republican senators had objected to Hurwitz and required a cloture vote on his nomination because of his role some 40 years earlier as a young law clerk. Hurwitz had been a law clerk for then-U.S. District Judge Jon O. Newman, and in a 2002 law review article, Hurwitz wrote that he had helped to write—and still admires the legal framework for—Newman's opinion striking down Connecticut's abortion law, just a year before the U.S. Supreme Court decided Roe v. Wade.^[50] Both of Hurwitz's home-state senators have supported his nomination, but other Republican senators have objected to it.^[51] After a Republican filibuster on Hurwitz's nomination, senators voted 60-31 on June 11, 2012 to invoke cloture and break the filibuster.^[52] Senators then confirmed Hurwitz on June 12, 2012 in a voice vote.^[53]
• United States Court of Appeals for the Tenth Circuit
  • Robert E. Bacharach (of Oklahoma), to seat vacated by Robert Harlan Henry. Bacharach was blocked by Senate Republicans in a 56-34 cloture vote on July 30, 2012, with 60 votes needed to break the filibuster.^[54] The reason for the Republican filibuster was their contention that the consideration of Bacharach's nomination had come too late in a presidential election year, per the informal Thurmond Rule.^[55] He was eventually confirmed by the Senate in February 2013.
• United States Court of Appeals for the Eleventh Circuit
  • Adalberto Jordan (of Florida), to seat vacated by Susan H. Black. Jordan's nomination was the subject of a filibuster by Senate Republicans who were angry by unrelated recess appointments by President Obama in early January 2012. On February 9, 2012, Senate Majority Leader Harry Reid motioned to invoke cloture on Jordan's nomination, thereby ending the filibuster. Cloture was achieved in an 89–5 vote on February 13, 2012,^[56] and the Senate confirmed Jordan on February 15, 2012 in a 94–5 vote.^[57]
  • Jill A. Pryor Originally nominated February 16, 2012 to a seat vacated by Stanley F. Birch. Georgia's two Republican senators Johnny Isakson and Saxby Chambliss refused to return their blue slips, thus preventing a hearing and effectively blocking her nomination.^[58] In September 2013 it was reported that a deal was in the works between the White House and the Senators to ensure a hearing on the Pryor nomination and to fill the other district court vacancies within Georgia, thus upsetting those in the Georgia's Democratic delegation.^[59] On May 13, 2014 a hearing was held on her nomination by the Senate Judiciary Committee. On June 19, 2014 her nomination was reported out of committee by voice vote. On July 30, 2014, Senate Majority Leader Harry Reid motioned to invoke cloture on Pryor's nomination. On July 31, 2014, the Senate voted 58-33 for cloture on Pryor's nomination. On September 8, 2014 the Senate voted 97-0 in favor of final confirmation.

List of failed, stalled or filibustered district court nominees

Failed nominees

• United States District Court for the Western District of New York
  • Michael Charles Green: Green, a district attorney in western New York, was nominated on January 26, 2011. He was reported out of the Senate Judiciary Committee and onto the Senate floor, but his nomination languished for more than six months before being returned to the White House at the behest of Senate Republicans at the end of the session of Congress that concluded in December 2011. Utah Sen. Mike Lee was the lone senator to oppose Green in the committee vote, and no Republican senators publicly explained their opposition to his nomination. In follow-up questions to his hearing testimony, however, several Republican senators focused on Green's decision to seek drug treatment rather than jail for some offenders, while others queried Green about his views on the death penalty. On December 18, 2011, a White House spokesman told a local newspaper that Obama would not be renominating Green to the seat.^[60] "Mike Green would have made an outstanding judge and it is very unfortunate not only for him, but for a strong judiciary, that partisan politics stood in the way," Sen. Chuck Schumer said in a statement on December 18, 2011. On December 19, 2011, Green said at a press conference that he blamed local opposition on his failed judicial nomination, as a result of his prosecution of public corruption.^[61] In May 2012, Obama nominated Frank Paul Geraci, Jr. to the seat to which Green had been nominated, and the Senate confirmed Geraci to the seat on December 13, 2012.
• United States District Court for the District of Maryland
  • Charles Bernard Day: Day, a magistrate judge in Maryland, was initially nominated in July 2010, but his nomination was withdrawn by President Barack Obama on October 31, 2011. According to Senators Barbara Mikulski and Ben Cardin, Day was blocked from receiving a hearing by Senate Republicans.^[62] In November 2011, Obama nominated George Levi Russell III to fill the vacant seat to which Day had been nominated, and the Senate confirmed Russell on May 14, 2012.
• United States District Court for the Northern District of Oklahoma
  • Arvo Mikkanen: Mikkanen was nominated after being recommended by Democratic Governor Brad Henry.^[63] His nomination was immediately met with opposition from members of Oklahoma's congressional delegation, with Republican Senators James Inhofe and Tom Coburn and Democratic Representative Dan Boren expressing disappointment that they were not consulted on the nomination.^[64][65] However, the Obama White House disputes that they did not consult with the Oklahoma congressional delegation.^[65] Public opposition to Mikkanen's nomination has centered around procedural grounds rather than substantive issues about Mikkanen himself.^[64][65] In February 2012, Obama nominated then-federal magistrate judge John E. Dowdell to the seat to which Mikkanen had been nominated. The Senate confirmed Dowdell on December 11, 2012.
• United States District Court for the Western District of Wisconsin
  • Louis B. Butler: Butler ran for the Wisconsin Supreme Court in 2000, but was defeated. He was appointed to the Wisconsin Supreme Court in 2004, but he narrowly lost the 2008 election to retain the seat.^[66] Critics argued that Butler should not be appointed to the federal bench after having been twice rejected by the voters of his state.^[66] Republican Sen. Ron Johnson, who was elected in 2010, immediately put a hold on Butler's nomination once he took office, and senators returned Butler's nomination to the White House in December 2011. On November 7, 2013, President Obama nominated James D. Peterson to fill this vacancy and he was confirmed on May 8, 2014.
• United States District Court for the Northern District of Georgia
  • Natasha Perdew Silas: Georgia's two Republican senators, Johnny Isakson and Saxby Chambliss, opposed Silas for reasons they declined to discuss. As a result, Silas never received a hearing before the United States Senate Committee on the Judiciary.^[67] Her nomination was returned to President Barack Obama on December 17, 2011. On December 19, 2013 President Obama nominated Mark Howard Cohen to fill this vacancy. He was confirmed on November 18, 2014.
  • Linda T. Walker: Originally nominated on January 26, 2011. Her nomination expired when it was returned to the President on December 17, 2011. On December 19, 2013 President Obama nominated Leigh Martin May to fill this vacancy. She was confirmed on November 13, 2014.
  • Michael P. Boggs: Originally nominated on December 19, 2013 to the seat expected to be vacated by Judge Julie E. Carnes, who was nominated to United States Court of Appeals for the Eleventh Circuit on the same day. David Scott, U.S. Representative Georgia's 13th district, criticized the nomination of Boggs because of Boggs' votes in the legislature to retain Confederate insignia in the state flag of Georgia, restrict abortion, and ban same-sex marriage.^[68] Boggs was nominated as part of a group of nominees that won approval of Georgia's U.S. Senators, to allow votes on their nominations.^[68] He received a hearing before the full panel of the United States Senate Judiciary Committee on May 13, 2014 but never reported from committee. On December 30, 2014, retiring Senator Saxby Chambliss (R-GA) revealed that he had been advised in late November by White House chief of staff Denis McDonough that Boggs would not be renominated in 2015 for confirmation by the 114th Congress.^[69] On July 30, 2015 the President nominated judge Dax Eric López to the vacancy. His nomination is now pending before committee.
• United States District Court for the District of Nevada
  • Elissa F. Cadish: On February 16, 2012, President Obama nominated Cadish to be a District Judge for the United States District Court for the District of Nevada.^[70] She would replace Judge Philip M. Pro who took senior status in 2011. Due to the fact that Senator Heller has refused to sign and return his blue slip for her nomination, the Senate Judiciary Committee could not hold a hearing on her nomination and the Senate could not proceed on the nomination. Heller's opposition to her nomination and his invocation of "senatorial courtesy" is due to a statement by Cadish indicating that she believed there was no individual right to keep and bear arms, a statement which was made in 2008, prior to Supreme Court decisions explicitly recognizing an individual right to keep and bear arms.^[71] On March 8, 2013, Cadish requested President Obama to withdraw her nomination and on March 13, 2013, President Obama formally withdrew the nomination.^[72] On January 16, 2014 President Obama nominated Richard Franklin Boulware II to fill this vacancy. He was confirmed on June 10, 2014.
• United States District Court for the Southern District of Florida
  • William L. Thomas: On November 14, 2012, President Barack Obama nominated Thomas to a seat on the U.S. District Court for the Southern District of Florida^[73] to replace Judge Adalberto Jordan.^[74] Thomas is openly gay.^[75] If confirmed, Thomas would have been the first out gay African American man to serve as a federal judge.^[76] On January 2, 2013, his nomination was returned to the President, due to the sine die adjournment of the Senate. On January 3, 2013, he was renominated to the same office. On September 19, 2013, Senator Marco Rubio announced that - although originally he recommended Thomas to the President - he would not return his blue slip for Thomas, effectively preventing the possibility of a hearing or confirmation vote.^[77] Thomas' nomination was returned to the President due to the sine die adjournment of Congress on January 3, 2014. President Obama has decided not to resubmitt Thomas' nomination a third time.^[78] Florida Circuit Court Judge Robin L. Rosenberg was nominated to the seat on February 26, 2014. She was confirmed on July 22, 2014.
• United States District Court for the District of South Carolina
  • Alison Renee Lee: Originally nominated on June 26, 2013 to the seat being vacated by Judge Cameron McGowan Currie, who took senior status on October 3, 2013.^[79] South Carolina Senators Lindsey Graham and Tim Scott opposed her nomination because of a controversial decision she made involving burglary suspect Lorenzo Young. Lee consolidated his bonds and reduced the total from $225,000 to $175,000 for Young, who subsequently was released and then later charged in the July 1 slaying of a 33-year-old woman.^[80][81] Due to opposition from her home state senators and no opportunity of receiving a committee hearing on September 18, 2014 President Barack Obama withdrew her nomination.^[82] As of August 2015, no nominee has been yet been announced for this vacancy.
• United States District Court for the Eastern District of North Carolina
  • Jennifer Prescod May-Parker: Originally nominated June 20, 2013 to the seat vacated by Malcolm Jones Howard, she never received a hearing. Senator Richard Burr never returned his “blue slip” indicating his support for her -^[83] Her nomination was returned on December 16, 2014 due to the sine die adjournment of the 113th Congress. President Obama chose not to renominate her. As of August 2015, no nominee has been yet been announced for this vacancy.

Successfully appointed nominees

• United States District Court for the District of Rhode Island
  • John J. McConnell, Jr.: McConnell was first nominated on March 10, 2010.^[84] On May 4, 2011, the United States Senate invoked cloture on McConnell's nomination in a 63–33 vote, and he was confirmed by the Senate later that same day in a 50–44 vote.^[85] The cloture petition filed to break the filibuster against McConnell marked one of the rare instances that such a motion has been required to force a vote on a district court nominee, with only three prior instances recorded.^[86] McConnell has donated hundreds of thousands of dollars to Democratic campaigns, including over eight thousand each to the campaigns of Rhode Island Senators Jack Reed and Sheldon Whitehouse.^[84] McConnell's critics contend that his prolific political contributions suggest that McConnell would be a partisan judge.^[87]
• United States District Court for the Northern District of California
  • Edward M. Chen: Chen faced opposition due to his work as an attorney for the American Civil Liberties Union.^[12][88] On May 5, 2011, Senate Majority Leader Harry Reid received unanimous consent from the Senate to proceed to an executive session of the Senate at a future time, eliminating the need to file for cloture on Chen's nomination.^[89] On May 10, 2011, Chen was confirmed by the Senate by a 56-42 vote.
• United States District Court for the District of Arizona
  • Rosemary Marquez: On June 23, 2011, President Obama nominated Marquez, a defense attorney, to the federal trial court in Arizona. However, Arizona's two Republican senators, John McCain and Jon Kyl, have refused to return their blue slips on Marquez's nomination, meaning that a hearing before the United States Senate Committee on the Judiciary cannot go forward.^[90] McCain has said that he does not believe that Marquez is qualified, telling a newspaper, "I've been working with Sen. Kyl, but we do not feel at this time that she's qualified."^[91] On January 28, 2014 the Senate Judiciary Committee held a hearing on her nomination as well as five other individuals nominated to the same court. She was confirmed on May 15, 2014 by a vote of 81-15.

Effects of vacancies

A 2016 study found the current rate of federal judge vacancies (10 percent) has led prosecutors dismiss more cases, and defendants to be more likely to plead guilty and less likely to be incarcerated.^[4] The authors find that "the current rate of vacancies has resulted in 1,000 fewer prison inmates annually compared to a fully-staffed court system, a 1.5 percent decrease."^[4]

See also

• Barack Obama Supreme Court candidates
• United States federal judge
• Federal judicial appointment history

References

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