Presidential administrations tend to attract attention for what commentators think they should have done better rather than for they think they have done well. That is unfortunate, and we should not hesitate to compliment presidents for their achievements as well as their oversights. The Senate Judiciary Committee voted today to send Patricia Millett, one of President Barack Obama’s recent nominees to the United States Court of Appeals to the District of Columbia Circuit, to the full Senate for a confirmation vote. This vote is just the latest success for Obama’s approach to judicial nominations since his re-election in November.
There were many suggestions about what Obama should have done differently as regards judicial nominations in his first term, but so far there are at least four things he has done for which he should receive credit. First, he has signaled to the larger public and, most importantly, to Congress that he cares about judicial nominations. When he announced the nominations of three candidates to the D.C. Circuit in June, he appeared with them in the Rose Garden, a setting usually reserved for only the most important presidential nominations.
Second, he has nominated large numbers of judges to the federal bench. Since November, by my count, he has nominated 49 judges to the federal district courts (this does not even include the 13 judges nominated before the election and confirmed by the Senate in December). This is more than double the pace of district court nominations from his first four years. He has nominated 14 judges to the federal appellate courts. This is about three times the pace of his nominations to the appellate court nominations during his first four years.
Third, as I have suggested is important before, he has also prioritized quality in addition to quantity in his nominations. Srikanth Srinivasan, confirmed to the D.C. Circuit in May, is the “Supreme Court Nominee-in-Waiting” according to Jeffrey Toobin of The New Yorker. One of the other recent nominees to the D.C. Circuit, Nina Pillard, would be a powerful progressive voice on the bench. William H. Orrick III will be an influential judge in the Northern District of California.
Fourth, Obama has done quantity and quality in a way that is strategically savvy by integrating the two. The perfect cannot be the enemy of the good when a Democratic president is facing hostile Republicans in the Senate, so Obama has to be realistic and smart about nominations. Srinivasan had clerked for two Republican-appointed judges earlier in his career, and is a long-time associate of elite Republicans like Senator Ted Cruz. As Micah Schwartzman has written in Slate, it can be helpful for potentially controversial nominations to be announced in bulk, because it makes it harder for Republicans to obstruct all of these nominations. (Obama's three nominations to the D.C. Circuit were the most made to that court in a single day by a Democratic president in at least more than half a century.)
It was just over ten months ago that Obama was re-elected, but when it comes to the federal courts he has used that time wisely. Let’s hope the next three-plus years feature more of the same.
David Fontana is associate professor of law at George Washington University School of Law.