New York Times
For Obama, a Record on Diversity but Delays on Judicial Confirmations
By John Schwartz
August 6, 2011

President Obama made history when he nominated Sonia Sotomayor, the first Hispanic justice on the Supreme Court. He did it again with his second nominee, Elena Kagan, raising the number of women on the nation’s highest court to three.

And Mr. Obama has also added judicial diversity further down the federal ladder. His administration has placed a higher percentage of ethnic minorities among his nominees into federal judgeships than any other president.

So far, Mr. Obama has had 97 of his judicial nominees confirmed — compared with 322 for President George W. Bush and 372 for President Bill Clinton, who each served two terms. So far in Mr. Obama’s presidency, nearly half of the confirmed nominees are women, compared with 23 percent and 29 percent in the Bush and Clinton years.

Some 21 percent are black, compared with 7 percent under Mr. Bush and 16 percent under Mr. Clinton. And 11 percent are Hispanic, compared with 9 percent under Mr. Bush and 7 percent under Mr. Clinton. Of the nearly two dozen nominees awaiting a Senate confirmation vote, more than half are women, ethnic minorities or both.

Race is not the only measure of diversity under consideration by the administration — for example, J. Paul Oetken was the first openly gay man to be confirmed to the federal judiciary, in his case in the Southern District of New York. Mr. Obama has presented three other openly gay nominees to the Senate as well.

“The president wants the federal courts to look like America,” said Kathryn Ruemmler, the White House counsel. “He wants people who are coming to court to feel like it’s their court as well.”

Curt A. Levey, the executive director of the Committee for Justice, a conservative legal organization that often speaks out on judicial nominations, said discussions of diversity tracked old debates over affirmative action.

“Diversity is a good thing, but how do you achieve it — by quotas?” he said. “Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?”

“The more you focus on race and gender,” Mr. Levey added, “the less you’re going to focus on other traditional qualifications — that’s simply the math of it.”

Besides, he said, “If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”

Thomas H. Dupree Jr., former principal deputy attorney general in the George W. Bush administration, said ethnic diversity was one factor that should be weighed with other factors.

“It is important to think about how a candidate’s past experience in the law may give them knowledge or a perspective that can strengthen our judiciary,” he said.

“A judge who has spent his career as a prosecutor may bring a different perspective to applying the law than a judge who has been a law professor,” he added, “just as a judge who spent her prior legal career as a litigator may see things differently from someone who worked at a public interest firm.”

Mr. Dupree, who has signed on with a group advising Mitt Romney, the Republican presidential candidate, on judicial selection, emphasized that he was speaking only for himself.

Ms. Ruemmler said the administration does seek a broad range of life experiences in nominees.

“It’s not just about race, it’s not just about gender, it’s not just about experience,” she said. “We try to look at judges in a much more holistic way.”

Getting nominees confirmed has proved a challenge for the administration. A recent report from the Constitutional Accountability Center in Washington said the federal judiciary had had more than 750 days with at least 80 vacancies on the federal bench, which adds to the workload of an already overburdened judiciary.

“Never before has the number of vacancies risen so sharply and remained so high for so long during a president’s term,” wrote the group, which noted that all presidents come into office with a backlog that gets worked down more quickly over time.

Judicial nominations have been a source of escalating conflict since the fight over President Ronald Reagan’s attempt to nominate Robert H. Bork to the Supreme Court in 1987. Over the years, fights have included refusals by Senate Republicans to hold hearings on Mr. Clinton’s nominees and Democratic senators filibustering nominees of Mr. Bush.

Now that conflict is just one of many in a continuing battle between Congress and the president that also includes nominations to the executive branch and efforts to pass major legislation.

While Mr. Obama was relatively slow to nominate judges earlier in his term, his team has now sped up, the group said. But Congress has been slow to confirm nominees, some of whom “go through committee without any opposition and still spend months and months waiting for a vote on the Senate floor,” said Doug Kendall, the group’s founder. “That’s never happened before, and it’s a big part of the reason the judicial vacancy problem has reached crisis proportions.”

Ms. Ruemmler said, “We would obviously like the pace to improve.”

Liberal activists say there is a political agenda involved. “Republicans are using judgeships as political pawns in a partisan game,” said Nan Aron, the founder and president of Alliance for Justice, a liberal advocacy group in Washington.

John Ashbrook, a spokesman for the Senate minority leader, Mitch McConnell of Kentucky, disagreed with the notion that politics was slowing confirmations, noting that the Senate had confirmed a handful of judges before going into its current recess.

“Senate Republicans didn’t object to any of the judicial nominees that the majority proposed this week,” he said. “In fact, our members agreed to confirm several judges.”

Mr. Levey said that while his group and others had mounted resistance to several Obama nominees, including Goodwin Liu, a nominee to the United States Court of Appeals for the Ninth Circuit who withdrew after a Senate filibuster, there was no overarching campaign to slow the process.

“If there is a plan to delay these noncontroversial nominees, nobody has told me about it,” he said. He instead attributed the pace of confirmations to “the general lack of cooperation on all issues” in Congress.

Either way, the effect might be the same, said Ms. Aron, whose organization issues regular reports on judicial nominations. She warned that confirmations slow to a trickle during an election year.

“We’re looking at the next seven months as the time that the pace of confirmations has to accelerate to have a fully staffed judiciary,” she said. “The window is closing soon.”