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Obama’s judge problem


I have a piece in the Daily Beast, commenting on the fact that Obama’s judicial nominations are getting rejected by the ABA at four times the rate that Bush II’s and Clinton’s were.

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  • Murc

    Speaking only for myself; fuck the ABA. They’re a private organization. At their best, they are a guild; at their worst, they are an old boys club. They have no business having any sort role, quasi-official or otherwise, in the vetting of judicial nominees. ESPECIALLY when they do it all secretly.

    The ABA is entitled to its opinion, of course. But only that. Bush telling them to go piss up a rope is one of the few things he did with regard to his judicial nominations that I wholeheartedly applaud.

  • Kurzleg

    Interesting piece, Paul. As someone who knows very little about the ABA and the nomination process, I had no clue that the Bush administration took this step. It’s possibly the first time I’ve agreed with something that Bush did while in office.

  • Incontinentia Buttocks

    Do we know who the rejected nominees were? Is it possible that the Obama Administration just did a crappy job of choosing judicial nominees?

    I’m perfectly willing to entertain the notion that the fault here lies with the “legal establishment” rather than the political establishment, but knowing details about the nominees would seem to be necessary before drawing any strong conclusions.

  • It’s true that 31 percent of Obama’s potential judicial nominees have been minorities, while “only” 18 percent of Bush’s were. But consider how much deeper the pool of liberal ethnic-minority candidates is than that made up of conservative minorities. In 2008 Obama received 95 percent of the African-American vote, and 67 percent of the votes cast by Hispanics. Those figures suggest that, relative to the available candidates, the Bush administration engaged in more aggressive affirmative action when it came to nominating federal judges than the Obama administration has. [Emphasis added.]

    Isn’t there a missing step here? You’re comparing the relative pools of liberal and conservative minority candidates for judicial positions by referring to the relative size of the liberal and conservative minority voting blocs? The question would seem to call for a comparison of the numbers of minority candidates in each pool who are actually qualified to serve as judges, since “qualifications” are precisely what the ABA is calling into question (however problematically). Which would, in turn, open onto the very interesting question of how many African-American and Hispanic citizens wind up becoming eligible for judicial positions in the first place.

    Just a curious question. It certainly doesn’t speak to your much stronger closing point, namely, that Bush simply stiff-armed the ABA from the outset.

    • Paul Campos

      It’s a fair point, as I’m using voting bloc percentage totals as a very loose proxy for the likely ideological orientation of plausible judicial candidates, which is admittedly speculation. I do think it’s plausible to assume that it’s significantly harder to find reliably conservative African-American judge candidates than liberal ones, although the 20 to 1 ratio is no doubt an overstatement of how difficult.

  • Furious Jorge

    There’s a whole lot of stupid in the comments to that post.

    And it’s the worst kind of stupid – the kind that masquerades as clear-eyed, contrarian smarts.

    • Downpuppy

      I wish it was surprising that they don’t even bother to skim enough of the post to be able to pretend to have read it.

    • Anderson

      Daily Beast comments are stupid in general, are they not? They always have been on the rare occasions I’ve looked at a thread there.

      • Furious Jorge

        That was the first – and last – time I’ve ever looked, so I will take your word for that.

  • Glenn

    An important point not made in Paul’s piece is that, with one exception, the nominees deemed “not qualified” were for the district court. At least historically, the district court nominations are usually the province of the Senator(s) representing that district. Yes, the White House has to sign off, but Obama’s team is probably not out there scouring for candidates.

    • Anderson

      Orin Kerr had a post up at the Volokh blog on this issue — to the extent that Obama’s been suggesting law profs and such for district-court seats, I tend to concur that it’s better to have trial judges who have tried a lot of cases.

      • Jim

        District court judges are “trial judges,” in the federal system. Do you mean that he should appoint magistrates to become district court judges?

        • Holden Pattern

          Or state court trial-level judges (but that strikes me as truly challenging pool to weed through — the most polite thing you can say about state court trial judges is that they’re a mixed bag).

        • L2P

          If “trial judges” means lawyers with significant trial experience then I think most people agree with you.

          • Anderson

            Uh, yeah — lawyers use “try a case” to refer both to a judge’s presiding a case, and to a lawyer’s representing a party at trial. “That guy can’t try a case.”

            then I think most people agree with you

            The weird thing about that VC thread was how many people did *not* find that obvious.

            Judges already start out with the problem that, while most lawyers split their practice b/t criminal and civil, judges try both kinds of cases. The feds actually provide little seminars for new district-court judges for that reason, to acquaint them with the basics of the area they aren’t familiar with.

            That learning curve is bad enough without a judge who’s never tried *any* kind of case as a lawyer.

  • chris

    Because of the rather bizarre rules of contemporary American politics, which make it impossible to argue that large, powerful organizations might be prone to “conservative bias,” Obama can’t simply reverse Bush’s claim

    Sure, but that doesn’t mean it wouldn’t be true to do so. If there’s ever an institution that probably *would* be prone to conservative bias, a group of lawyers ranks only slightly behind financiers and business owners on that list. So if Obama’s nominees are more liberal, you don’t really need to look all that hard for another cause. To conservatives, the label “unqualified” would be just another weapon to deploy against their enemies, not something with some kind of truth value that they would need to objectively justify before using it.

  • The author noes that Bush conducted the power plaw with the ABA, but that doesn’t explain why Obama’s nominees’ rate is so different from Clinton’s (which is more similar to Bush’s.)

    I’ve had questions about Obama’s nomination process for a while. It just doesn’t seem to function as well as the rest of the White House.

    This piece raises even more questions.

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