Gumming Up the Works

| Mon Sep. 14, 2009 4:26 PM EDT

Via Jeralyn, I see that Jeffrey Toobin has a long piece in the New Yorker this week about how Barack Obama's post-partisan instincts have run aground on the shoals of the modern Republican Party.  It started with his very first judicial nomination:

On March 17th President Obama nominated David Hamilton, the chief federal district-court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton’s appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself.

You can probably guess how this turned out, can't you?  Obama continued nominating people he thought could be quickly confirmed, but then:

But then, as the first White House official put it, “Hamilton blew up.” Conservatives seized on a 2005 case, in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. In June, Hamilton was approved by the Judiciary Committee on a straight party-line vote, twelve to seven, but his nomination has not yet been brought to the Senate floor. Some Republicans have already vowed a filibuster. (Republican threats of extended debate on nominees can stop the Democratic majority from bringing any of them up for votes.)

“The reaction to Hamilton certainly has given people pause here,” the second White House official said. “If they are going to stop David Hamilton, then who won’t they stop?”

Toobin's overall take is that Obama isn't a big fan of relying on the judiciary to accomplish liberal goals.  Obama thinks that's Congress's job, and for that reason he's willing to nominate relative pragmatists to the bench in the hope of avoiding some of the bitter confirmation battles of the Clinton and Bush years.  But he's finding out that it doesn't matter: he could nominate the ghost of John Marshall to the federal appellate court and Republicans would fight to keep him off.  It's good politics, after all, since the more energy the Senate expends on judicial nominees, the less it has for anything else.

This isn't anything new.  Judicial nominations have been a warzone for the past three decades.  But it continues to get worse and worse, and now it's become pathological: nominees are no longer opposed only if they genuinely hold some extreme position disliked by the minority, they're opposed as a matter of course simply as a way to gum up the works.  It's crazy that it should take six months to confirm a routine judgeship, let alone a year or two, but that's the current reality.  Ditto for midlevel bureaucratic positions, all of which take longer to confirm than the high-profile cabinet secretaries they report to.

“Post-partisanship has not yet arrived in judicial selection, or in anything else” says an unnamed Obama advisor at the end of the article.  I hope the rest of his staff has figured this out by now too.

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