A Closer Look at Confirmed Federal Judges

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Judicial confirmations are marred by either "unanimous consent" or unnecessary scrutiny

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Rueters


Earlier this week, I cited with disgust the Senate's failure to confirm 20 judicial nominees whose candidacies already have been endorsed by the Senate Judiciary Committee. Here we have some of the best and brightest legal minds in the country, ready to serve the people in a vital job that is woefully understaffed, and they cannot do so because of political pique. Imagine how America would feel (and react) if those judges were instead soldiers, ready to serve their country on the front lines, and the Senate was holding them back for no good reason at all.

Now I'd like to take a closer look at those judges who have been confirmed so far under the Obama Administration. These confirmations have come at a much slower pace than we saw either with the Clinton Administration or during the era of George W. Bush. It's fair to say that different readers will come to different conclusions about what these figures mean. But I think it's worthwhile to throw the stats (and a few stories) out for discussion before Congress comes back from its undeserved summer vacation and begins to think again about our federal courts.

Since January 10, 2009, the date of the last inauguration, 89 federal appellate and trial judges have been confirmed by the Senate (which has been in Democratic control the whole while). Of these 89 judges, 24 have been confirmed by the Senate by "unanimous consent." This means the senators didn't even bother to conduct a roll call vote on the matter. Ten more judges were approved by a "voice vote," which means, again, that no formal roll call vote was taken. And 41 of our nation's newest federal judges were unanimously approved by the Senate. No one voted "no."

One judge, Nancy D. Freudenthal of Wyoming, was confirmed with just one "no" vote. Another, Gerald E. Lynch, was confirmed to the 2nd U.S. Circuit Court of Appeals with only three "no" votes. This means that 77 of 89 federal judges confirmed so far during the Obama Administration came onto the bench without any meaningful opposition on the floor of the Senate. That's 87 percent! -- and it suggests that many of the current 20 judicial nominees now out of committee will similarly roll through their confirmation. Why that couldn't have happened in late July or early August, while the Senate was waiting to do the debt deal, is beyond me. 

Now let's look briefly at the handful of Obama judicial nominees who have generated some opposition on the Senate floor. I identified seven such candidates, who each received more than 25 "no" votes, and offered some comment about some of the reported reasons for the opposition they found.

2nd U.S. Circuit Court of Appeals Judge Susan Carney (Votes 71-28). Republicans didn't like her lack of litigation experience, the fact that she is married to a member of The New York Times editorial board, or the fact that she received a less than stellar review by the American Bar Association. She received a "qualified" rating and it was not unanimous.

7th U.S. Circuit Court of Appeals Judge David Hamilton (Votes 59-39). Even though his local Federalist Society endorsed this nephew of former Congressional leader Lee Hamilton, Senate Republicans mostly didn't because, as a trial judge, Hamilton had issued this 2005 ruling which had infuriated the religious right. Citing Supreme Court precedent, Judge Hamilton had ruled that Indiana's legislative prayer before each session could no longer be "sectarian" and regularly invoke the name of Jesus Christ.

Northern District of Ohio Judge Benita Y. Pearson (Votes 56-39). The first black female federal jurist in Ohio almost didn't get the gig. The precise reasons why are unclear. The People for the American Way suggested that she was a member of an animal rights group and thus earned the wrath of those in the cattle industries -- although 39 "no" votes is quite a lot of beef to have against a pioneering jurist.

District of Colorado Judge William J. Martinez (Votes 58-37). By contrast, it is not hard to understand why this Mexico-born nominee roused so much Republican opposition on the floor of the Senate. Before he was nominated, Martinez advised the Americans with Civil Liberties Union and was a lawyer for the Equal Employment Opportunity Commission (just like Clarence Thomas before him, only Justice Thomas' EEOC experience evidently was a boon for his nomination). Of nominee Martinez, Sen. Jeff Sessions (R-Ala.) said: "It seems that if you've got the ACLU DNA you've got a pretty good leg up to being nominated by this president."

District of Rhode Island Judge John J. McConnell (Votes 50-44). It's also fairly clear why Judge McConnell almost didn't make it onto the bench. Senate Republicans didn't like him because the U.S. Chamber of Commerce didn't like him because, as a lawyer, McConnell had successfully sued Big Tobacco and fought for those harmed by lead paint. Evidently that's five Republican votes more serious in the Senate than ticking off Big Beef.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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