A Boston Globe editorial noted that by the end of his first term, President Obama will have appointed far fewer lower court judges than either of his two predecessors, and chided him for "fail[ing] to make the most of an opportunity to shape the federal judiciary." The editorial referenced a recent New York Times article that highlighted unprecedented Republican obstruction of President Obama's nominees but does not actually mention this fact. By ignoring Republican obstruction, the Globe gives its readers far less than half the story.
The federal judiciary currently has so many vacancies that more than half of Americans are living in a "judicial emergency." That is, as district judges are increasingly faced with disproportionately large dockets, attention to individual cases falls, resolution is delayed, and access to justice for everyone suffers. As The New York Times reported, as of August 17, "Mr. Obama has appointed just 125 such judges, compared with 170 at a similar point in Mr. Clinton's first term and 162 for Mr. Bush."
This New York Times article upon which the Boston Globe relied repeatedly provides the reason for this significant difference. In large part, our federal courts are straining to perform their vital constitutional duty because Senate Republicans have engaged in unprecedented obstruction and refused to allow votes on even uncontroversial nominees. According to the Times:
Senate Republicans also played a role, ratcheting up partisan warfare over judges that has been escalating for the past generation by delaying even uncontroversial picks who would have been quickly approved in the past.
Even when the White House produced nominees, they faced significant obstacles on the Senate floor. Republicans used procedural rules to delay votes on uncontroversial appeals court nominees and on district court nominees, forcing Democrats to consume hours of precious Senate floor time on confirmation votes for judges of a type that previously would have been quickly handled.
But the Boston Globe editors ignore the Republican factor and instead argue Obama "should have picked up the pace." The Globe's readers are left without a clear response to the editorial's criticism that "[i]t's hard to understand how a president who headed the Harvard Law Review and taught constitutional law could fail to make the most of an opportunity to shape the federal judiciary."
As judicial nominations expert Professor Carl Tobias noted early on about this campaign of obstruction, Senate Republicans have caused the "confirmation bottleneck" since the beginning of Obama's presidency. It has not gotten better. According to the Alliance for Justice's most recent analysis on the state of the judiciary as the President's first term closes:
The Republicans' goal has been clear from the start--to keep as many seats as possible vacant for a future Republican president to fill with ultraconservative judges. Their tactics have meant that with one in ten judgeships unfilled, millions of businesses and everyday Americans have had their cases delayed and their lives disrupted. Before Congress recesses for the election in October, it is essential that the Senate mitigate the harm that endless obstruction has done to the federal judiciary and give a final yes-or-no vote to every nominee submitted by the president in 2012.