White House Steps Up Effort to Confirm Federal Judges

White House Steps Up Effort to Confirm Federal Judges

By JEREMY W. PETERS APRIL 28, 2014

http://www.nytimes.com/2014/04/29/us/white-house-steps-up-effort-to-confirm-federal-judges.html?ref=todayspaper&_r=0

WASHINGTON — With the possibility that Republicans could take the Senate in November, the White House and Senate Democrats are working swiftly to confirm judges to the federal courts in an effort to allow President Obama to leave a lasting liberal imprint on the judiciary.

Adding to the sense of urgency is the possibility that the window in which the president can make the appointments he wants might be closing faster than Democrats would like.

Republicans, still fuming over the change in filibuster rules that ended their ability to block presidential appointments, could shut down the confirmation process any time between now and November, as the minority party has been known to do in election years.

Over the objections of conservatives, Democrats on Monday narrowly won, in a 51-to-40 vote, confirmation of a San Francisco lawyer, Michelle T. Friedland, to fill the last vacancy on the United States Court of Appeals for the Ninth Circuit. The powerful Ninth Circuit, which is based in California and has long been a target for Republicans who have lamented its liberal bent, had not had a full bench in nine years.

Senator Lindsey Graham, Republican of South Carolina. Credit Gary Cameron/Reuters

Some Republicans are openly threatening to hold up or halt the confirmation process altogether to deprive the president of his picks — a move that would be disruptive and open the party up to charges of obstruction in the middle of a closely contested battle for control of Congress.

“Part of his legacy should be that he pushed to change the rules and paid a price for it,” Senator Lindsey Graham, Republican of South Carolina, said of the president. He added that members of his party were still deeply resentful of Mr. Obama for encouraging Senate Democrats to end the filibuster on all presidential nominations but those to the Supreme Court.

“The Democrats have to think long and hard about this now,” Mr. Graham said. “We’re getting into that time period where traditionally the closer the election, the less activity. We’re likely to be in charge next year. They need to think long and hard about what they’re doing.”

The implications will stretch far beyond the Obama presidency. Presidents Ronald Reagan and George W. Bush left a lasting mark on the federal courts by appointing young, conservative judges who could sit on the bench and affect policy for decades, and Mr. Obama is seeking to do the same with liberal jurists.

At the White House, three lawyers in the counsel’s office are working full time vetting and processing nominees and potential nominees in an effort that has escalated significantly since the president’s first term. The departing counsel, Kathryn Ruemmler, has been working more directly with Democratic senators, urging them to send the White House names of acceptable nominees as quickly as possible. And as soon as the administration learns of a vacancy, the counsel’s office wastes no time compiling a list of possible candidates.

“What we’ve tried to do is turn up the volume, if you will, in the second term,” Ms. Ruemmler said. She noted that the White House was much more focused on legislation during the first term, leaving it less time to devote to judges.

Ms. Ruemmler acknowledged the difficulties that the White House and Senate Democrats were likely to face from Republicans, who have shown little inclination to fast-track any of Mr. Obama’s nominees.

“I have not gotten the feeling from them that there’s a great sense of urgency,” she added, speaking of Senate Republicans. “But we have been working for years to try to get these vacancies filled, and there’s no reason they shouldn’t go through.”

As Mr. Obama contemplates the limited possibility of getting major, legacy-defining pieces of his agenda through a divided Congress, the men and women he is able to name to the federal bench offer a way for him to leave a legacy on policy for a generation or longer.

The departing White House counsel, Kathryn Ruemmler. Credit Charles Dharapak/Associated Press

But even with the rules changes that significantly limit the minority party’s ability to block nominees, Republicans have procedural maneuvers to exploit. By refusing to consent to votes last year, they forced Mr. Obama to resubmit a slate of nominees, restarting a cumbersome process that required them all to be nominated and processed again.

Republicans have also slowed down confirmations through a Senate custom known as the “blue slip” process, which allows each senator veto power over any judge from his or her state. In Texas, which has 10 vacant federal judgeships and two Republican senators, John Cornyn and Ted Cruz, a federal judge has not been confirmed by the full Senate since April 2012 (though one did recently win approval from the Judiciary Committee and is awaiting a final vote).

After Ms. Friedland’s confirmation, there are 86 vacancies in the federal courts. Mr. Obama has sent 49 nominees to the Senate to fill those slots. Nineteen are pending in the Judiciary Committee, and 30 are awaiting votes by the full Senate.

Conservative groups opposed Ms. Friedland, calling her, for example, “an enemy” of separated powers and limited government and unfit for the bench.

Liberal groups have long struggled to match the motivation and intensity that conservatives have in rallying their faithful around the issue of appointed judges.

“Conservatives accepted decades ago that the selection of federal judges is a 100 percent political process,” said Robert Raben, a political consultant who works with the White House and Democrats on nominees. “Progressives have been very slow to accept that fact.”

Mr. Raben helped form a political action committee called the Committee for a Fair Judiciary, which aims to energize liberal activists and senators on judicial appointments. The group looked at a raft of recent cases challenging abortion restrictions in federal courts, and found that of the nine rulings that upheld those laws or denied an injunction, seven were decided by judges appointed by a Republican president. Of the 13 rulings that struck down or enjoined an anti-abortion law, 10 were decided by judges appointed by a Democrat.

“One just has to be awake and aware to be worried,” said Judith L. Lichtman, a senior adviser to the National Partnership for Women and Families, one of several liberal organizations dedicated to issues like women’s rights, gay rights and the environment that are trying to refocus Democrats’ attention on the courts.

“There is infinite amount of mischief that senators could make, if they so choose, to hold up the democratic process,” Ms. Lichtman added of fears that Republicans could start significantly slowing confirmations.

Senator Charles Grassley of Iowa, the senior Republican on the Judiciary Committee, said Republicans were continuing to examine their options. Asked whether they would eventually cut off confirmations altogether this year, he said, “Obviously, it’s going to happen sometime.”

Kathryn Ruemmler

Kathryn H. Ruemmler is the White House counsel for the Barack Obama administration, was a partner at Latham & Watkins, LLP, and the principal associate deputy attorney general for the U.S. Department of Justice.

Note: David M. Brodsky was a partner at Latham & Watkins, LLP, and is a director at the American Constitution Society.

Open Society Foundations was a funder for the American Constitution Society, the Alliance for Justice, the Planned Parenthood Federation of America, and the Center for American Progress.

George Soros is the founder & chairman for the Open Society Foundations, was the chairman for the Foundation to Promote Open Society, and a supporter for the Center for American Progress.

Foundation to Promote Open Society was a funder for the NAACP Legal Defense & Educational Fund, and the Center for American Progress.

Judith L. Lichtman was a director at the American Constitution Society, and is a senior adviser at the National Partnership for Women & Families.

Barbra Streisand Foundation was a funder for the American Constitution Society, and the Planned Parenthood Federation of America.

Robert Raben was a director at the American Constitution Society, a director at the Alliance for Justice, Barney Frank’s counsel, the assistant attorney general for the U.S. Department of Justice, and is the president of the Raben Group.

Barney Frank’s counsel was Robert Raben, and his sister is Ann Lewis.

Ann Lewis is Barney Frank’s sister, and was a VP at the Planned Parenthood Federation of America.

Eric H. Holder Jr. was a board member at the American Constitution Society, an intern at the NAACP Legal Defense & Educational Fund, a partner at Covington & Burling LLP, and is the attorney general at the U.S. Department of Justice for the Barack Obama administration.

Michael Chertoff is a senior of counsel at Covington & Burling LLP, was a partner at Latham & Watkins, LLP, a judge for the Third Circuit Court of Appeals, and an assistant attorney general for the U.S. Department of Justice.

Alex Kozinski was an attorney at Covington & Burling LLP, and is the chief judge for the U.S. Court of Appeals for the 9th Circuit.

Jocelyn C. Frye was the general counsel for the National Partnership for Women & Families, the policy & projects director to Michelle Obama for the Barack Obama administration, is Michelle Obama’s Harvard Law school friend, and a senior fellow at the Center for American Progress.

Melody C. Barnes was the domestic policy council, director for the Barack Obama administration, the EVP for the Center for American Progress, a principal at the Raben Group, and is Barack Obama’s golf partner.

Raben Group was the lobby firm for the Morehouse School of Medicine, and is the lobby firm for the NAACP Legal Defense & Educational Fund.

Eric H. Holder Jr. is a trustee at the Morehouse School of Medicine, the attorney general at the U.S. Department of Justice for the Barack Obama administration, and was an intern at the NAACP Legal Defense & Educational Fund.

Louis W. Sullivan was the president of the Morehouse School of Medicine, and is an Oak Bluffs (MA) homeowner.

Vernon E. Jordan Jr. is senior director at the NAACP Legal Defense & Educational Fund, an Oak Bluffs (MA) homeowner, Valerie B. Jarrett’s great uncle, a director at the American Friends of Bilderberg (think tank), and a 2008 Bilderberg conference participant (think tank).

Valerie B. Jarrett is Vernon E. Jordan Jr’s great niece, the senior adviser for the Barack Obama administration, and a member of the Commercial Club of Chicago.

R. Eden Martin is the president of the Commercial Club of Chicago, and counsel at Sidley Austin LLP

Newton N. Minow is a member of the Commercial Club of Chicago, and a senior counsel at Sidley Austin LLP.

Barack Obama was an intern at Sidley Austin LLP.

Michelle Obama was a lawyer at Sidley Austin LLP, her policy & projects director for the Barack Obama administration was Jocelyn C. Frye.

Jocelyn C. Frye was the policy & projects director to Michelle Obama for the Barack Obama administration, the general counsel for the National Partnership for Women & Families, is Michelle Obama’s Harvard Law school friend, and a senior fellow at the Center for American Progress.

Open Society Foundations was a funder for the Center for American Progress, the American Constitution Society, and the Economic Policy Institute.

George Soros is the founder & chairman for the Open Society Foundations, and was a supporter for the Center for American Progress.

Judith L. Lichtman was a director at the American Constitution Society, and is a senior adviser at the National Partnership for Women & Families.

Debra L. Ness is the president of the National Partnership for Women & Families, and a director at the Economic Policy Institute.

NVG was the lobby firm for the National Partnership for Women & Families.

Maria Echaveste is the co-founder & partner for NVG, a board of adviser’s member for the American Constitution Society, a senior fellow at the Center for American Progress, a board member for Priorities USA Action, and was William J. Clinton’s deputy chief of staff.

Priorities USA Action was a super PAC supporting the 2012 Barack Obama presidential campaign, and is supporting the 2016 Hillary Rodham Clinton presidential campaign.

George Soros is a co-chair, national finance council at Ready for Hillary.