Chart of the Day: Obama's Epic Failure on Judicial Nominees

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The White House releases an infographic on the Senate's confirmation mess. That's not a serious enough response by a mile.

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White House

The general liberal gloom following Supreme Court oral arguments on Obamacare holds up the prospect of a serious vicious cycle. The court's decision could deal a death blow to Obama's reelection prospects, as well as to the liberal project of the last half-century. And if they do, the president's failure to get more nominees confirmed to the judiciary means that liberals will face an even more challenging judicial environment for decades to come.

Check out the visual above, which is one part of a much larger infographic the White House is circulating. You'll recall that during the periods of the Bush administration when Democrats controlled the Senate, Republicans complained about the Dems gumming up the works, filibustering, and refusing to give judicial nominees up-or-down votes. Among the senators who took part in this process was Illinois' Barack Obama. Even allowing for the prospect that Democrats were conscientiously and wholeheartedly opposed to the prospect of some of these nominees making it to the federal bench, it was an unprecedented use of procedure, and led then-Majority Leader Bill Frist to threaten to eliminate the filibuster.

As this graphic shows, the problem has only gotten worse. It has taken four to five times longer for Obama nominees to come to a vote than Bush nominees, even when there's bipartisan support for them in committee, because Republicans have repeatedly blocked votes. As James Fallows has chronicled, GOP abuse of the filibuster has been far worse than Democratic abuse. And it has serious consequences. One in 10 judgeships is open, the wait for a civil litigant's jury trial is now more than a year, and the number of vacancies on the federal bench has increased from 55 in 2009 to 83 today. In his 2010 year-end report on the state of the judiciary, Chief Justice John Roberts wrote:

Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes. This has 7created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads.

The question is, why is the White House's response to this an infographic?

If the problem is so serious, it's surprising we haven't heard more about it from the president and his surrogates. More importantly, it's surprising that Obama has been slow to actually nominate judges for vacancies. In fact, there are 40 spots for which he hasn't even nominated anyone. This is a point that liberal commentators, especially Jonathan Bernstein and Jamelle Bouie, have been hammering for years now. Here's a very rough count, using tables posted on Wikipedia (the exact number may be slightly off, though the big picture still holds): By this point in their respective first terms, George H.W. Bush, Bill Clinton, and George W. Bush had 155, 185, and 174 nominees confirmed. Obama? He's gotten just 133 through -- although the current president has had two Supreme Court justices confirmed, while the younger Bush didn't nominate a single one in his first term.

If the Supreme Court overturns Obamacare, there will certainly be a liberal attack on the court -- whether from Obama or from elsewhere. To rally the progressive base, these people will note that if Obama loses, it's likely to mean more Republican nominees to the high court, and likely ones more in the Alito mode than the Kennedy mode.

This graphic inadvertently makes the case that there's a much bigger danger to Democratic causes -- and, accordingly, that Obama's failure is that much more serious. In addition to the five Republican nominees on the Supreme Court, GOP nominees comprise 53 percent of sitting judges on circuit courts. It's the lower courts that decide the vast majority of cases, not the Supreme Court, and those seats are lifetime appointments, just like the Supreme Court. It's hard to imagine there will be significant movement on nominees between now and November, and if Obama loses in November -- in part because of the health-care law -- it will set the stage for an even more conservative judiciary.

Conservatives are already crowing that a constitutional law professor may have signed an unconstitutional health-reform bill into law. But the greater irony would be if the constitutional law professor's failure to act to fill judicial vacancies set back the progressive causes he cares about for decades to come.

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David A. Graham

David Graham is a senior associate editor at The Atlantic, where he oversees the Politics Channel. He previously reported for Newsweek, The Wall Street Journal, and The National.

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