President Obama seeks to leave mark on the bench
By: Edward-Isaac Dovere
January 13, 2014 04:57 PM EST
Monday’s expected confirmation of Robert Wilkins to the D.C. Circuit Court will be the latest judicial win for the White House — not just because he’s the third of the three nominees the president announced in June to increase pressure on Senate Republicans, but because he’s the 41st African-American Obama’s gotten confirmed for the bench.
President Barack Obama has talked a lot about increasing diversity on the bench. A year ago, shortly after Obama’s second inauguration and fresh on the job himself as the new chief of staff, Denis McDonough decided to actually make it a West Wing priority.
The White House is eager to talk about its record of success, despite its complaints about long waits on confirmations that led Democrats to the nuclear option in the Senate. Obama has nominated, and the Senate has confirmed, more women, more African-Americans, more Latinos, more Asians and more openly gay judges than any previous president.
The Senate has confirmed 93 women to the bench thus far during Obama’s tenure, compared to 71 during George W. Bush’s full two terms. Bill Clinton got the first and only openly gay judge confirmed before 2009. Obama’s gotten seven confirmed so far.
Much of that has to do with the emphasis McDonough’s put on the effort. Late in the week, every week, he hosts a special judicial nominations meeting in his office which he and White House counsel Kathy Ruemmler co-chair — where there are openings, whom they want in the spots, and how they’re going to get those people confirmed.
Obama’s attention to judicial diversity is “incredible legacy matter,” Ruemmler said. “He has always stated that he wants to make sure that we raise the bar for the next president and the president thereafter.”
“The president is holding my feet to the fire to make sure that we’re continuing to drive judicial nominations, both in terms of numbers, but also in terms of diversity,” Ruemmler added.
Together with staffers from the political, legislative, communications and public engagement offices and senior adviser Dan Pfeiffer, McDonough and Ruemmler go through the status of pending recommendations from senators and candidate vets, which nominees are coming up on the floor and when, and who’s going to take which senator for the necessary lobbying phone calls.
The meetings are about external strategy, but they’re also meant “to drive the judicial agenda within the White House, to get everyone motivated and to let everybody know internally at the White House how much of a priority it was to the president to make a big push with respect to judges,” Ruemmler said.
The president’s been roundly criticized for not paying enough attention to diversity in his administration, and Democrats complained that he hadn’t spent nearly enough time on judicial nominations in his first term.
“The reality is they started slowly on judicial nominations, which had he not been reelected would have created a real problem,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).
A year later, the situation looks very different, Leahy said. “When President Obama finishes his term, here’s what’s going to be important: he will leave a federal judiciary more diverse — gender, racial — than it ever has been.”
Sen. Chuck Grassley (R-Iowa), the ranking member of the Judiciary Committee, attributed the change in nominees in part to a legal community that’s grown more diverse over the years. “It’s a whole societal attitude that they’re benefiting from, and I’m glad that they’re taking advantage of it, but they’ve got qualified people,” he said.
Not all of them have gotten through, and many have been slowed past the point of White House complaints, but overall, these district and circuit court nominations that have quietly moved even as attention has focused on the higher-profile nominees repeatedly blocked or voted down.
White House aides say they remain cautiously optimistic that this will continue, even with the GOP bitterness over the nuclear option that limited the ability to filibuster judicial nominees. But Republicans aren’t so sure.
“I think that’s going to be more of a caucus decision,” Grassley said on how the Republicans will proceed. “But I would suggest that at least short term, there will be. I think that’s a reality of the political environment we’re in.”
Already, Sen. Marco Rubio’s (R-Fla.) decision to withdraw his backing for William Thomas, an openly gay black judge he’d initially recommended for a district court spot, led to the White House dropping its nomination in January. Not long after, Sen. Richard Burr (R-N.C.) pulled back on Jennifer May-Parker, whom he’d recommended in 2009 for a district court nomination in his own state.
The White House was already dealing with the realities of the appointment process, which relies on approval from home state senators, even when they’re Republicans — a situation that last month led to complaints that Obama conceded too much in a deal with Georgia GOP Sens. Johnny Isakson and Saxby Chambliss to stop blocking Jill Pryor’s nomination for the court of appeals in the 11th Circuit. The arrangement led to Obama’s nominating several other judges with what Rep. John Lewis (D-Ga.) and other civil rights leaders said were troubling civil rights records, and without enough diversity.
But even in Mississippi, where Obama’s never been popular and probably never will be, White House aides speak warmly about their joint efforts with the offices of Republican Sens. Roger Wicker and Thad Cochran to get Debra Brown, the first African-American woman to be a district judge in the state.
“I am thrilled and honored to be part of this historic moment for Mississippi,” Wicker said when Brown was confirmed, calling her “a proven trailblazer.”
Riding the Senate subway alongside fellow Mississippi Republican Sen. Thad Cochran recently, Wicker also pointed to their support for James Graves, whom Obama nominated to be the first ever African-American judge from the state to serve on the fifth circuit.
The Obama White House has made a notable difference on judicial diversity, Wicker said.
“I think they have,” Wicker said. “I’ve been helpful.”
The White House closed out the year with a couple of other big confirmation wins, getting Nina Pillard and Patricia Millet on the D.C. Circuit, and lining up Wilkins for Monday’s vote after seven months of waiting.
Diversity has been a selling point on the Hill in some cases, White House officials insist, although there are no guarantees. In 2013, the president got four more women confirmed and nominated two more for district courts, for a total of 14 women Obama’s nominated over the last five years in districts that have never before had a female judge.
“It’s not as if the fact that there’s never been one is the only consideration, but we where we can point out to the senators — or we encourage applicants ourselves — saying, ‘There’s never been a woman in this district before.’ That’s a statistic that often surprises people, that surprised us when we started here. When people start to realize it, they realize the importance of it,” said Christopher Kang, who oversees judicial nominations for the White House counsel’s office. “If you have two candidates who are otherwise equal, then having the opportunity to break that barrier is something we strive to do.”
With a record number of judges retiring over the last five years, Obama has made 34 more federal nominations than George W. Bush had by the same point in his presidency (despite that, Obama’s gotten six fewer judges confirmed than Bush had).
Obama has nominated 287 people for the bench and 219 have been confirmed. Of that, he’s nominated 122 women and had 93 confirmed, nominated 55 African-Americans and had 41 confirmed, nominated 30 Latinos and had 27 confirmed, nominated 21 Asians and had 16 confirmed, nominated 10 LGBT candidates and had 7 confirmed.
Diane Humetewa would be the only active Native American federal judge in the country if she’s gets the Arizona district court spot Obama nominated her for. She’s the second Native American he’s nominated, though neither have been confirmed.
The difference to past presidents is stark: Of Obama’s nominations, 43 percent have been women, compared to 22 percent for Bush and 29 percent for Clinton. The higher numbers hold for other demographics too: 18 percent of Obama’s confirmed judges have been African-American, compared to 8 percent for Bush and 16 percent for Clinton; 13 percent have been Latino, compared to 9 percent for Bush and 7 percent for Clinton; 7 percent of his have been Asian American and Pacific Islanders, compared to 1 percent each for Bush and Clinton
Taken together, the diversity effort is critical in creating “basis for public confidence” in the judiciary, said Federal Judges Association president Margaret McKeown, a sitting appeals court judge in California appointed by Bill Clinton.
“The inevitable question always is, ‘Well, do you think it will make a difference in the outcome of the case?’” McKeown said. “And my response is, in large part, no. It may make a difference in how one perceives an issue, the experience one brings to the table and the background one brings to thinking about a question, but it doesn’t necessarily change the outcome.”