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Obama Risks Losing His Judicial Prize

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Posted on Nov 24, 2009
White House / Pete Souza

By Stanley Kutler

(Page 2)

On Nov. 17, the Senate ended the stall and voted 70-29 to end the filibuster. Ten Republicans voted for cloture, including Lugar. Two days later, the full Senate voted 59-39, with Lugar casting the sole Republican aye vote. For all the fuss, the confirmation will probably have little political effect. The 7th Circuit appellate court, which serves Illinois, Indiana and Wisconsin, has seven judges nominated by Republican presidents and will have four, including Hamilton, chosen by a Democrat.

Sen. Sessions, the Republican-designated point man on judicial nominations, has a pertinent history. In 1986, Reagan nominated then-U.S. Attorney Sessions for a federal judgeship. The Republican-dominated Senate Judiciary Committee held a prompt hearing, but Democrats unearthed a sorry record. Thanks to Sessions’ dubious past of offensive racial remarks and notions, the committee rejected his nomination, 10-8. Sessions now is a man on a mission, supported by outside lobbying groups, to thwart Obama’s nominations. Former Reagan Attorney General Edwin Meese secured a letter signed by 24 leading conservatives, urging a filibuster against Hamilton, calling him “precisely the kind of liberal judicial activist who would use our federal courts as his own superlegislature.” Nine of the 24 signatories opposed judicial filibusters during the George W. Bush administration, yet they now urged GOP senators to filibuster against the Hamilton nomination. We need a scorecard to keep track of these players in their ever-changing positions.

Obama has barely attempted to secure judges of his liking. There are 98 vacancies for district and appellate courts, and only 19 pending nominees. A majority of federal judges were appointed by Reagan and the two Bushes.

The David Hamilton saga in the Senate is a foretaste of what we can expect. George W. Bush, in his first year as president, made 64 nominations to federal courts; Obama has made 26 in the 10 months since his inauguration, according to the Alliance for Justice. Bush had 18 confirmed choices in his first year; Obama has had seven so far, including Supreme Court Justice Sonya Sotomayor.


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For the president, time is getting short. Presidential power often can be seen as the story of a steady erosion of support in Congress. Obama should not lose sight of his moment and his opportunity to shape (and reshape) the judiciary in his own image—just as his predecessors have done throughout history.

Stanley Kutler is the author of “Judicial Power and Reconstruction Politics” and other writings.

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G.Anderson's avatar

By G.Anderson, November 27, 2009 at 8:54 am Link to this comment

Obviously, the Obama administration has made some mistakes. Things are not going well in Washington.

At this point the Republicans have tasted blood, and realized that their counter stategy, of defiant resistance has been more successful, than President Obama’s appeals to reason, and rationality.

At least for this 4 years, the promise of an Obama administration has already passed.

His adminstration, and his presidency, will be compared to Woodrow Wilson’s, one with high ideals, that however set the stage, for the continued economnic destruction of the country by the corporations.

It was one of so many missed opportunities for reform, marked by contiued political disillusionment.

Our political process in this country is broken, subverted by corporations, our future as a country is in question.

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By ardee, November 27, 2009 at 6:54 am Link to this comment

I would offer, having read the absurdities Mandinka posts in at least two forums, that he has read neither document, would not have understood either had he actually read them, and is worthy of being ignored.

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By idarad, November 27, 2009 at 6:06 am Link to this comment

mandinka =

It seems your reading of the Communist Manifesto is similar to your reading of the US Constitution, but you do need to understand what you are reading (moving your lips while reading does not bring clarity)  As for Bork, I sat through the hearings and his depth of knowledge is was profound.  That does not mean he would rise to the level of a great judge, he could recite the words of law, the Constitution, the problem is he does not, like most of the corporate clan in Washington, both Democrat and Republican, understand equal protection, the rights of the few from the whims of the many. Read the 9th amendment!

I am 6 decades into this journey, spent my time defending the Constitution in the Army and Navy, and I give a damn about the idiots who have taken it and denied the people of their rights.  Fascists comes to mind.

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By DBM, November 26, 2009 at 11:44 pm Link to this comment

Really Mandinka?  The Communist Manifesto reads like the Democratic Party’s platform?  Sadly, there is no discernible space between the Democratic Party platform and the Republican Party platform.  Same wars.  Same lack of intention to withdraw.  Same bloated military budget.  Same transfer of money from poor and middle class to the rich.  Not co-incidentally both parties are funded by the same corporate donors.

If only there was a distinctly different policy agenda coming out of the Democratic Party ... but alas there is not.  About the only thing they have to offer is a figurehead one hell of a lot less embarrassing than the last one. grin

Oh, and as for Bork ... you must be pretty upset that Jeff Sessions never made it to the Supreme Court either ...

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By mandinka, November 26, 2009 at 6:26 pm Link to this comment

idarad, its obvious that you are to young to understand the history of judicial appointments and the stonewalling perpertrated by the dems. Borks hearing was a man who was a master of the constitution going toe to toe with uneducated morons on the judicery panel.
and yes I’ve read the communist manefesto it sounds like the democratic partys platform

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By geschenke für männer, November 26, 2009 at 4:38 am Link to this comment
(Unregistered commenter)

Politicians are striving for “looks” rather than the best interest of our country on both sides.The problem is not who supports FISA or what FISA really means to the average American; the problem for Obama is one of perception.If he votes against bill, he loses far more votes in the middle of America than he’s going to lose from the left by voting FOR the bill.

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By veracity, November 25, 2009 at 10:29 pm Link to this comment

hate to scold, but it is long past time for ‘liberals’ to realize: there is NOTHING “Democratic” about President Obama’s White House administration;  they are composed EXCLUSIVELY of Neo-Con warmongers, and GolddamnSachs Treasury looting swindlers. 
  (As to the former, there is not a hair’s-breadth of difference between Obama White House Chief of Staff Rahm Emanuel’s world-view, and that held by uber Likudnik warmongers Joe Lieberman and Paul Wolfowitz. In fact, Emanuel’s father was an Irgun “freedom fighter” (one person’s “freedom fighter” is another’s rebel terrorist) trying to establish Israel after WWII -  a Likudnik’s Likudnik.
(And, of course, during Gulf-War 1 Rahm Emanuel volunteered…. as a civilian aide to the IDF, the Israel military!)
  It is really getting tiresome to see competent “liberal” websites and talkers FAIL to notice - the entire Obama White House, if not entire Dem. Party, are in the stranglehold grip of the very reactionary,  very Right-Wing, Deregulation, Tax-cuts-for-wealthy in time of war AND deficits;  expanded-wars overseas, and commensurate Police-state powers Neo-Cons.  They FAILED at EVERYTHING they touched under Bush & Cheney (indeed, Cheney would have been NOTHING without his Neo-Con Likudnik backers)... and now Barack Obama has incredibly stupidly given them the keys to the universe.

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By idarad, November 25, 2009 at 6:30 pm Link to this comment

Mandinka - Before you start spewing the vile hypocrisy of your “position”, it might be in your best interest to understand the concepts you seem to detest.  Start with reading the Communist Manifesto so that you know from whence you spew. Next you need to revisit the record of appointments dating back to Johnson and read the actual hearing scripts.

Your writing is of the quality generally reserved for Fox “News”, truth and fact have little need to appear in context of the vocalization. If you want to make a case, get your facts, and your base information correct and then provide an argument.

Or better yet, pull your knucles up of the ground and go back to your cave.

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By mandinka, November 25, 2009 at 12:20 pm Link to this comment

Lets see we have the usual hand grenade throwers posting an article. Every republican president has been stone walled by democrats starting with Nixon and his judicial appointments.
I love the comment “ultra conservative” Bork… how is he any different than the ultracommunist that was appointed Ruth bad breath?? or the racist soyna i know nothing mayor?? The difference was the republicans said OK because they looked at the nominees education and didn’t use a litmus test which all democrats require
It would behoove barak to quit relying on his communist roots and appoint some one who has actually read the constitution and understands it for a change, since he obviously does not

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By ardee, November 25, 2009 at 9:22 am Link to this comment

coco, November 25 at 12:53 pm #

How are you suppose to govern with a bunch of commie republicans road blocking every effort at any process of rehabilitating the country?


How are you supposed to form correct opinions when you so incorrectly call fascists as communists?

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By coco, November 25, 2009 at 8:53 am Link to this comment

How are you suppose to govern with a bunch of commie republicans road blocking every effort at any process of rehabilitating the country? There isn’t a word spoke that they don’t start a cock fight over. They are so busy passing the buck and spreading propaganda that I’m suprised that their party follower’s don’t catch onto their babble. Obama wasn’t in office a month and their party hacks had him blamed for the total collaps that the Bush administration left. Obama needs to pick about 5 radicals at the same time and enter them up for the supreme court. That should give the republicans something to squeal about. I would like to hear Gingrich’s two cents on that?

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By the worm, November 25, 2009 at 7:41 am Link to this comment

DBM, I you may certainly be correct. The result is the same: No traditional
Democratic policies enacted, increasing debt & deficit, no movement toward ‘fair
taxes’, no meaningful health care reform, no meaningful financial and banking
reforms, no significant effort to rectify the bungled and failed bailout, nothing but
tele-moments planned to address ‘jobs’ (the trillions spent on bankers could have
paid the salaries of a quarter of a million people), looks away as the financial
industry both raises fees (to get around the anticipated ‘rules’) and tightens credit
to borrowers (while making record ‘bonuses’, i.e. turning fungible taxpayer
provided ‘bailout’ money to ‘bonus’ money. Yesterday, I read a piece which
explored the question: “Can the Dems Create a Liberal-Populist Movement?” Dont
even know how the question could come up, given the Democrats’ record to date,
general ineptitude and refusal to acknowledge the liberal forces that brought it to

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By idarad, November 25, 2009 at 5:58 am Link to this comment

ardee - don’t forget the threat of the nuclear option by the wing nuts to get its
vile fundamentalist on the benches.

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By DBM, November 24, 2009 at 9:58 pm Link to this comment

I don’t know Worm, I don’t see the Obama administration as living in a fantasy.  I see them trying to create a fantasy wherein they are giving the old college try to getting their policies enacted and their appointees in place but after much honest struggle they are forced to give in to the policies and appointees favoured by the funders of the Democratic Party.  Their funders are the same funders as those of the Republicans.  Their genuine policy agenda is just like Roberts voting history: big against small, powerful against weak, corporate against individual.

  They don’t live in a fantasy, they are trying to create one.

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By the worm, November 24, 2009 at 4:24 pm Link to this comment

This administration lives in a ‘bipartisanship’ fantasy. The Republicans are a
‘take no prisoners’ party and every move toward them is seen a capitulation and
weakness, emboldening them more.
This administration has lost most of the people who put it there and is losing
others on a daily basis. It is no surprise the Republicans can fight and win.
For the administration is living a fantasy. The administration does not have the
fighting spirit required for the effort. It is a sad and pathetic ending to a very,
very short period of ‘change you can believe in’.  I feel sorry for Obama (who
has apparently surrounded himself with delusional folks who think they know
whta they’re doing but most certainly do not. But most, I feel sorry for the
American people, who have now been fooled by two consecutive
administrations - one for a needless and wasteful war followed by ineptitude,
and another for an extravagant and ill-timed ‘bail out’ of Wall Street followed
by lackluster leadership on traditional Democratic policies.

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Blackspeare's avatar

By Blackspeare, November 24, 2009 at 3:50 pm Link to this comment

This is the least of Obama’s problems.  Very shortly, inflation will raise it’s ugly head and then the US will wish it were back to what will seem as these good old days.

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By ardee, November 24, 2009 at 3:34 pm Link to this comment

I wonder if anyone has researched the nominees rejected or withdrawn from the process under President Bush. Or read the quips from GOP leaders promising to hinder any and all judicial nominees of Obama. If you do so you will quickly come to the realisation that a certain bird here, who flies only in circles to the right, is full of something that smells rather badly.

The GOP, while in power, refused the Democrats meeting rooms, refused to deliver copies of bills until mere hours prior to votes, in some cases failed to even notify them of meeting times and dates. I do not seek to defend the Democrats, only to defend sanity and truth.

Serves me right for breaking my rule about not reading the stuff from that circling bird…..Wont happen again.

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By voice of truth, November 24, 2009 at 3:04 pm Link to this comment

Give me a break.  It has always been the Left that has viewed the Judiciary as a way to get their views into laws that the majority of Americans oppose.  And it was Democrats who lobbed the first bombs in what has now become the ritual stated.  The things that were said about Robert Bork were so ridiculous it was sublime.  Remember Ted Kennedy’s speech on “Robert Bork’s America”, given within hours of the nominee being named?  He was probably drunk at the same time he was blathering.

The treatment accorded to Clarence Thomas was equally appalling.  Again, Ted Kennedy, lecturing anyone on respect for women, I thought I was in another dimension.

Not a single Democratic nominee has EVER been so vicously libeled and publicly villified/humiliated as these two were.

As the Democrats stacked their seats on the Senate Judiciary Committee with the likes of hard core liberals Ted Kennedy and Chuck Schumer, the rancor became even worse.

I find it riduculous that anyone can complain about any Republican senator trying to filibuster a Democratic nominee after what the Democratic senators did to the vast majority of Bush nominees over the last 8 years.

Look, I don’t mind a debate on the difference of opinions, but to pretend that some things just didn’t happen is ludicrous.

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Go Right Young Man's avatar

By Go Right Young Man, November 24, 2009 at 2:57 pm Link to this comment

“We have now regressed. Rarely in our history has partisanship been more narrow and rigid.’—‘Our vaunted democratic process is dysfunctional. Party comity and bipartisanship are at an ebb. As a result, the process of nominating and confirming federal judges has broken down.”

Mr. Kutler,

How is it possible for you to believe this is a new or rare occasion?  We see this very situation each and every time the White House changes hands.  We have all seen this like minded “news” analysis on every like occasion.  A few short years ago you smart people talking amongst yourselves in the media were discussing the “nuclear option” over opposition to judicial nominees.  You yourself wrote on how serious the situation was at the time. 

So I ask again. How is it possible for you to believe this is a new or rare occasion?

You have the ability to reach a great many people.  You could do so much better than this.

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By TAO Walker, November 24, 2009 at 1:11 pm Link to this comment

So long as people can be kept running willy-nilly from one media-set “firestorm” to another, the organized arsonists busily burning-down the whole Planet need fear no effective resistance to their Terracidal “project.”  Today it’s “Obama….losing his judicial prize,” whatever-the-hell that means.  Yesterday it was the SNL send-up of Palin/2012.  Tomorrow it is as likely to be some overblown “scandal” in “the world of SPORTS (which was a much more useful term when it referred to “freaks” of Nature, instead of to a vast sink-hole into which the precious attention of so many is sucked CONstantly and irretrievably, to no good end whatsoever).”

Without some comprehensive sense of both the magnitude and the purposes of the CONtraption they’re caught-in, the sub-species homo domesticus (presently making-up damned-near 100% of the Two-Leggeds here) is helpless to respond to their shared predicament in anything but the most piece-meal and feckless manner.  At the very least, the immense effort expended by their tormentors to keep them “individual”-ized might offer some hint of what it is these wannabe parasites fear the most….and thus an indicator of a Way out from what is designed to be a DEAD END for our Mother Earth and all who “sail” in Her.

“Fantasy Football,” anyone?


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By ardee, November 24, 2009 at 10:58 am Link to this comment

I find it fascinating that the GOP spokepersons always claim Democrats wish to install “activist judges” when their own appointees are generally the most activist and regressive.Chief Justice Robverts, as only one example, has voted 100% of the time for big against small, powerful against weak, corporate against individual. One hundred percent!

We seem to have reached a moment in our political history when the business of our legislature has taken a backseat to partisan and destructive politics. The GOP is sucking the lifesblood from our nation frankly, and the damnable Democrats are either in collusion with, or to weak, cowardly or confused to stop them.

If we had a President with even a modicum of experience this might be overcome, but we dont and it cannot.

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By NYCartist, November 24, 2009 at 10:43 am Link to this comment

A beautiful history and piece of writing.

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By gerard, November 24, 2009 at 9:53 am Link to this comment

As long as money buys elections and runs the country from the top down, who could expect anything else?

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Samson's avatar

By Samson, November 24, 2009 at 7:18 am Link to this comment

Of course, all the history trying to describe this as a partisan stalemate is highly misleading.  The real situation is very different.

When the Republicans have power, the Democrats say that its wrong to oppose judicial nominations.  We had the “Gang of 7”, which were Democrats in name only in the Senate, come out and say that combined they would work with the Republicans to stop any filibusters that would block the rightwing nuts that Bush and the Republicans wanted on the bench.

My local Democratic in name only Senator at the time, Ken Salazar, was a leader in this Gang of 7 movement.  Did this make him an outcast in the Democratic party for aiding the Republicans in this way?  No, he was instead rewarded with a cabinet post at the Interior Dept.  Seems like some people in the leadership of the Dem party thought Ken was doing a fine job with all of his pro-Republican votes.

So, with the Democrats serving as the ‘opposition’, we get a political system where rightwing judges, especially ones that rule consistently in favor of corporate power sail onto the federal benches with ease, while when the Republicans don’t have power all judicial nominations are blocked.

The Democrats will of course try to spin this and act like the Republicans are awful. But what the Democrats can’t erase is their record of allowing right-wing judges onto the bench.  The rewards given to Ken Salazar show that this was not in any way opposite to Dem party policy.

If the Democrats are upset with this in any way, its only because it blocks their ability to hand out political patronage to their supporters.

You have to look at the whole picture to see how the Democrats are screwing us over.  What we really have is a system where both parties work together to pack the benches with pro-government-power, pro-government-spying, pro-torture, and especially pro-corporation judges.

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