Judicial nominations are one area where President Obama has made good on his claim to change the “tone in Washington.” There haven’t been many donnybrooks or confrontations over Obama’s picks, and he hasn’t put any starkly polarizing figures on the bench. This wasn’t an accident, Obama’s aides recently told The New York Times: Obama wanted to find more centrist nominees with widely acceptable credentials.
But while this explanation puts a positive spin on the large number of judicial vacancies — near the end of Obama’s term, there are, for instance, three openings on the important District of Columbia Circuit Court of Appeals and one on the Boston-based 1st Circuit Court of Appeals, among others — it doesn’t fully account for his slowness in naming judges. Obama was on the right track in choosing less controversial figures, but he should have picked up the pace. It is well within the vetting capability of the White House to create a pipeline of highly qualified potential nominees and fill vacancies more quickly.
It’s hard to understand how a president who headed the Harvard Law Review and taught constitutional law could fail to make the most of an opportunity to shape the federal judiciary. Obama has appointed 125 federal district court judges, compared with 170 for George W. Bush and 162 for Bill Clinton at the same point in their presidencies. To some extent, the number of nominations depends on the level of vacancies; but on that score, Obama is leaving more posts unfilled at the end of his first term than either Bush or Clinton. That means if the president is defeated by Mitt Romney in the fall, Romney will get more picks.
Federal judges represent any president’s longest legacy, with some serving for three decades or more. And Obama, with two relatively young Supreme Court picks and roughly the same number of federal appeals judges as Bush and Clinton at the same points in their presidencies, will leave behind many talented jurists. He may also set a model for future presidents in choosing less contentious figures. But over almost four years he could have, and should have, done more.