Barack Obama has appointed fewer judges in his first year than any president in modern history. There are over 100 empty federal benches across the 860 member judiciary. Many jurisdictions face formal emergencies and certain court districts are overwhelmed.
It should be no surprise that Republican confirmation obstruction of judicial nominees is to blame. The indirect causation of bench vacancies, however, is that GOP obstruction has left the Justice Department's Office of Legal Policy without a head for the past year. Senate Republicans have stalled Obama's nomination for the very office responsible for vetting, selecting, and lobbying for judicial selections.
Obama's exceptionally well qualified choice for the OLP position is Duke law professor Christopher Schroeder. The well known scholar and former public servant enjoys strong, bipartisan support. Yet, his nomination is being stalled.
The obstructionist strategy is too obvious. Keep Obama's judge vetting operation muddled for the first year and impede the timely appointment of Obama judges for the rest of the first term.
As Patrick Leahy recently stated: "Even when they cannot say 'no,' Republicans nonetheless demand that the Senate go slow." Leahy correctly analyzed that "obstruction and delay" of judge and justice confirmations "is part of a partisan pattern."
Action on Obama Judges Begins with the OLP
President Obama needs to redouble his judicial appointment efforts. One-sixth of the judiciary is vacant and twenty additional judge retirements are already scheduled. Speculation mounts regarding at least one Supreme Court retirement this summer.
Obama needs to keep the Senate queue full of judicial nominations. He needs to use the bully pulpit to demand timely confirmation. Obama must make judge confirmations and GOP obstruction a mid-term campaign issue.
But first, Obama must have a fully functioning operation to vet, select, and help confirm judicial nominees. Step one should be filling the top spot at the Office of Legal Policy to lead the hardworking officials of the important DOJ office. As an Assistant Attorney General, the OLP head will also work closely with Robert Bauer and the White House Counsel's office to put Obama's mark on the judiciary.
History proves that such an operation is critical to an Administration's judge benching successes. President Obama has made a brilliant OLP choice in Chris Schroeder; thus the GOP obstruction of his appointment.
Chris Schroeder: Bipartisan Praise for a Stellar Nominee
Before law school, Chris Schroeder completed a Yale M.Div. degree. Perhaps the OLP nominee, who agrees with Obama that an allowance should be made for an empathy measure in vetting judges, just has too much heart for the hard line obstructionists.
Schroeder's June 2009, nomination stalled for months before being formally returned to the White House on Christmas Eve. Obama quickly re-nominated and the Judiciary Committee re-approved Schroeder last month. The Administration must now demand an up-or-down floor vote.
Christopher Schroeder exemplifies the dedicated scholar who is also an experienced public servant and practicing attorney. He served as Chief Counsel to Senate Judiciary Committee and as an Acting Assistant Attorney General. Coauthor of the 2009 Keeping Faith with the Constitution, Schroeder has a unique reverence for our Republic and a deep personal fidelity to its charter.
A wide range of former Clinton Administration officials, including former Solicitors General Walter Dellinger and Seth Waxman, strongly support his appointment.
But Schroeder's Republican references offer even more glowing praise. Ken Starr, a former Bush Solicitor General, writes of Schroeder's stellar reputation as "a thoughtful and measured person" who exercises "sound judgment."
Noting Schroeder's staff service for both political branches, Starr describes him as having a particularly keen sense of "what the Founding generation was seeking brilliantly to achieve: balanced government." Schroeder's practice and academic work proves "he understands, deeply, the appropriate role of the co-ordinate branches."
Arthur B. Culvahouse - Ronald Reagan's White House Counsel and present Chair of O'Melveny & Myers - offers an even stronger recommendation. Schroeder works as part-time counsel at O'Melveny. His boss praises his "exemplary" work on "highly complex legal matters."
A. B. Culvahouse details the nominee's "keen analysis, his great maturity and judgment, and his ability to work in a constructive and purposeful way with others."
Time is Up: Floor Vote or Recess Appointment
The Republican strategy to block Obama judges by extreme slow walking the judge-vetter is now exposed. Republicans should accept the Starr/Culverhouse testimony and allow an up-or-down vote before the Senate's Easter/Passover recess.
Otherwise, as I have argued, President Obama should make the OLP position one of scores of vacancies that he fills with the stroke of a pen. Obama can sign Schroeder's recess commission and put the man to work helping to appoint judges.
With appointments, as well as with health care reform, time is up for Republican obstruction.
(Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law. The views expressed are the author's alone and do not reflect those of CUA).