The vacant seat symbolizes the problems that President Barack Obama had in his first term in quickly nominating judges and winning even routine confirmations in the face of a determined Republican minority. He has had fewer judges confirmed than any first-term president in a quarter of a century, and he is the first chief executive unable to appoint anyone to the powerful D.C. Circuit Court of Appeals, which decides challenges to federal regulations.
Firmly in Republican control thanks in part to three appointees of President George W. Bush, the D.C. circuit recently struck down clean-air rules put forth by the Obama administration for coal-burning power plants. It also threw out a "shareholder democracy" rule that would have made it easier for investors to vote for independent directors of public corporations. Both rules were strongly opposed by business interests.
Although the Constitution says judges are to be approved on a majority vote, the Republican minority used the Senate's 60-vote filibuster rule to slow or block confirmation of Obama's nominees. They included Caitlin Halligan, a former New York state solicitor general, who was nominated in 2010 to fill Roberts' seat on the D.C. circuit.
Republicans said they opposed Halligan because, as a state attorney, she had argued in support of New York's suit against gun manufacturers. The National Rifle Association urged senators to block her, and she won only 54 votes, not enough to end a filibuster.
Obama said he was "deeply disappointed" at "the Republican pattern of obstructionism." But the filibuster was not invented by the Republicans.
When George W. Bush was president, the Democrats used the filibuster to block some of his nominees. Soon after taking office, Bush chose Miguel Estrada and Roberts for the D.C. Circuit. Both were well qualified and, if confirmed, were seen as likely nominees to the Supreme Court. Estrada, a native of Honduras, could have been the first Latino justice.
Republicans took seven tries but were unable to muster the 60 votes needed to break a Democratic filibuster against Estrada for the D.C. Circuit. In 2003, he withdrew his nomination. Roberts, avoiding controversy, was confirmed. But Bush put three more judges on the D.C. Circuit. In Bush's second term, then-Sen. Barack Obama from Illinois voted against the Supreme Court nominations of Roberts and Samuel A. Alito, and he joined a brief bid in 2006 to filibuster against Alito.
When Obama became president in 2009, his former Republican colleagues in the Senate were not inclined to swiftly or easily approve his nominees to the courts. Sen. Mitch McConnell of Kentucky, the GOP leader, repeatedly delayed votes on judges by invoking a different procedural rule. He refused to give unanimous consent to taking up nominations.
To compound the problem, Obama's team was slow getting started in 2009. The White House focused on winning approval for its first Supreme Court nominee, Sonia Sotomayor. But Obama made only 43 nominations to the lower courts in his first year, less than half the rate of Bush, who made 89 nominations.
The slow start combined with the GOP's go-slow approach to reduce Obama's influence.
When the 112th Congress adjourned last week, the Senate had approved 175 of Obama's judges. By comparison, Bush had 206 judges approved in his first term, and President Bill Clinton had 204 judges confirmed during his first four years.
The number of court vacancies rose during Obama's term, from 57 to 75. During Bush's term, vacancies were reduced from 81 to 41.
Obama's team contributed to the delay by taking months to decide on nominations. But the White House says the Senate has taken far longer than normal to approve his nominees.
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