Lagging Judicial Appointments and Electoral College Meddling

I. Laggardness and Timidity in Judicial Appointments
Professor Herman Schwartz fears that Obama administration laggardness and timidity in making judicial appointments will allow right-wing justices to dominate the federal courts further into the future and diminish Obama’s legacy through their rulings. According to Schwartz’s count, 75 seats on the federal bench remain open, compared to 53 in January 2009. Only 80 percent of the president’s district and circuit court nominees have been confirmed in the Senate. Obama’s immediate predecessors had higher confirmation percentages after four years in office. [1]

Professor Schwartz doesn’t put the entire blame on Obama for unfilled seats on the federal bench, because Senate Republicans use secret and public holds, filibusters and thirty hour “debates” if cloture is voted. Obama gives the GOP further opportunity to pick off appointments because he doesn’t make enough use of group appointments to be voted on as a group. [2]

Schwartz also faults Obama for selecting nominees who are older on average than those of his immediate predecessors in office and less ideological: three-quarters of his circuit court nominees are former prosecutors and many of those appointed from private practice are millionaires. [3]

In his new book, The Oath, Jeffrey Toobin gives another reason for Obama not aggressively filling the federal bench with less conservative judges: he believes that elections, not the courts, are the principal vehicle for social and political change.

II. Gerrymandering the Electoral College
Some prominent Republicans in Florida and Virginia have come out aganist awarding electoral college votes by how things turned out in GOP-gerrymandered congressional districts. Election analysts contend that if the gerrymandered approach had been in effect in just six target states in the 2012 presidential election — Pennsylvanis, Ohio, Michigan, Florida, Virginia and Wisconsin — it would have shifted 64 electoral votes and made Mitt Romney president. A Virginia Senate sub-committee recently approved a plan to award electoral votes by congressional district. If the plan had been in effect in the 2012 election, Mill Romney would have won nine of Virginia’s thirteen electoral votes, despite losing the state by over one million votes.

Nationwide in 2012, Democratic candidates for the U.S. House outscored the Republican candidates by over one million votes, yet the Republicans gained 33 more House seats. [4]


[1] Herman Schwartz, “Justice Delayed,” The Nation, January 21, 2013.

[2] Ibid.

[3] Ibid.

[4] Jason Sattler, “With the GOP Bragging About Rigging a House Majority, Is There Any Way to Stop Them?” The National Memo, January 17, 2013.


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