Who will still be implementing the landmark legislation of President Barack Obama's first term decades from now? It won't be Obama himself, or likely even his presidential successors, who will have new legislative issues to address. It will be federal judges, many of whom Obama can appoint and the Senate can confirm in the next four years. That is why getting judges confirmed is crucial in the Obama second term, and why trying new ways to get new judges on the bench is worth considering.
The presidential campaign touched on many issues, but there was little discussion of judicial nominations. In a president's second term, though, judicial nominations are even more important. The major pieces of legislation that a president convinces Congress to pass are usually during the first term, and the second term becomes more about interpreting and implementing these laws. This is why one study found that "nominations occur at a faster rate than otherwise" during a president's second term.
For Obama, the first term featured landmark legislation like the financial reform and health care laws. The second term will answer important questions arising out of debates about these laws. There is a challenge to the constitutionality of the financial reform law, and there is a good chance a judge that Obama could appoint to the bench will hear parts of that challenge. The Supreme Court's decision last June in the health care case has called into question laws as diverse as civil rights laws or education laws. Federal judges appointed by Obama could be deciding whether the Court's health care decision makes these federal statutes still constitutionally permissible.
To say that judicial nominations are important is easier than figuring out what to do to get judges confirmed, an issue that Obama struggled with in his first term. It is not just that the president should, as I have written elsewhere, nominate younger judges, notable judges, or be more aggressive with his nominees. It is time to make fundamental changes to the nominations process that would not just help Obama but later presidents.
First, in the executive branch, it might be time to create an office solely focused on judicial nominations. The White House Counsel's Office has played a major role in judicial nominations during this administration, but that office is also responsible for more immediate, pressing issues like the legality of bombing missions in Libya. Staffers outside of the Counsel's Office in the White House are sometimes entrusted with nominations responsibilities as well, but these officials are also located within offices that have a range of distracting responsibilities.
The Office of Legal Policy ("OLP") has done heroic work on judicial nominations, but it too has other important matters on its docket. Also, because OLP is located outside of the White House, OLP's relevance has also tended to depend on the closeness of the relationship of the head of the office with the White House.
A single-issue office within the White House could create officials who are motivated to make judges a priority and give those officials a more direct path to the Chief of Staff or other senior officials. Judges appointed for life might matter the same or almost as much as the environment (Council on Environmental Quality) or drugs (Office of National Drug Policy), and both of these issues have issue-specific offices that are located within the Executive Office of the president.
Second, changes to the way the Senate handles judicial nominees would help Obama's nominees. Republican Senators filibustered nominees or refused to permit a full floor vote using other tactics. During Obama's first term, the tradition of deference to the home state senators or home state bar association committees entrusted often resulted in delays in forwarding names to the president, or sometimes not forwarding any names to the president at all. Obama rarely overruled or ignored these Senate-driven procedures.
There is much discussion in the air in Washington of filibuster reform or other major reform to Senate rules. Something more modest, and more issue-specific to judicial nominations, might be more politically doable. Deadlines can work well in legislative-executive interactions. The second-term Obama administration might convince the Senate to adopt George W. Bush's proposal that judicial nominations must be voted on within 12 months after the vacancy occurs. The administration might reach an agreement with the Senate that -- before any particular nominees are announced and become controversial -- a certain number of judicial nominees will receive a full Senate vote every session.
The president might pledge that he will seek support from home state actors before nominating a judge for that state, but this support need not come from politically motivated Senators or bar associations. The president might informally appoint his own nomination committees in each state. The president can then tell home-state senators that these senators have a certain number of days to decide on a nominee, and failing that presidentially nominated home state committees will step up to fill the void.
Presidents come and go, but federal judges stay. In the second term, it is important that President Obama find ways to focus his energies on judicial nominations, and find ways to ensure that the Senate does the same.
David Fontana is Associate Professor of Law at George Washington University Law School.