Judging the Senate

President Barack Obama is having a very hard time getting his judicial nominees confirmed by the Senate. As of a few weeks ago, 43 of his judicial nominees are awaiting a vote either in the Senate Judiciary Committee or on the floor of the Senate. Only 75 percent of Obama's judicial nominees have been confirmed by the Senate, as compared to 88 percent of the nominees of President George W. Bush. Most notably, during Obama's first term, there has been an increase by 51 percent in the number of federal judicial vacancies (when Bill Clinton was President, during his first term there was a 65 percent decrease in the number of judicial vacancies).

Part of the administration's problems in the Senate are due to inevitable opportunity costs: in the first term, time spent pushing the Senate on judicial nominees would have been time taken away from financial reform or health care reform. But President Obama can do two things to help his nominees before the Senate: change the backgrounds of those he nominates, and change the way he presents these nominees to the Senate.

Obama should make his nominees appear more bipartisan, and more human. The strategies that the Obama administration used in the Senate during its first term with two women, Sonia Sotomayor and Lily Ledbetter, helped the administration achieve two of its major first-term triumphs. Sotomayor was a progressive nominee treated more sympathetically by the Senate because a Republican had appointed her to an earlier position (a position on the federal district court). Ledbetter was the poster child for reform that provided what was otherwise an arcane legal issue before the Senate with a decidedly sympathetic human face.

First, it is time for President Obama to nominate progressives who happen to have been appointed or hired by Republicans. Republican President George H.W. Bush appointed Sotomayor to a seat on the Southern District of New York. After Sotomayor was nominated, her initial nomination by a Republican President became something that the media mentioned and that provided helpful talking points for Democratic Senators. This fact about Sotomayor became such a political problem for opponents that Republican Senator Jeff Sessions and The Weekly Standard had to take time away from attacking Sotomayor on the issues to argue that Sotomayor was not actually supported by the first President Bush. Sotomayor's appointment by a Republican seemed to move public opinion, and even seemed to provide talking points and political cover for the nine Republican senators who voted to confirm Sotomayor.

Sotomayor is not the only progressive appointed to a position by a Republican -- there is a deep enough bench of other progressives who can point to Republican support. President George H.W. Bush appointed Roger Gregory, a progressive judge on the United States Court of Appeals to the Fourth Circuit. Conservative Supreme Court Justice Antonin Scalia was known for hiring one progressive every year as a law clerk, and many of his progressive clerks have gone on to great legal careers. One of Obama's most promising first-term judicial nominees, Paul Watford of the Court of Appeals for the Ninth Circuit, clerked for a judicial nominee of President Ronald Reagan, Alex Kozinski, and this fact helped convince some Republican senators to support his nomination. Other potential future judicial nominees, like Leondra Kruger in the Solicitor General's Office, served in the executive branch during Republican administrations. Progressives might have to work harder to convince themselves that these judicial nominees share their views; but if they discover they do, nominees like this will do better in the Senate, and can be a stealth source of nominees who are both confirmable and progressive.

Second, it is time for the administration to create nomination hearings that have more human drama and less legal theory. It is conventional wisdom in the social sciences that people respond more to stories that feature identifiable victims or heroes. For instance, the first law that President Obama signed after taking office modified a federal statute that the Supreme Court had interpreted to create stricter filing deadlines for certain civil rights lawsuits. This rather dry and arcane statutory interpretation issue was given a human face throughout the administration's efforts to overturn the Court's decision. When the Senate held hearings about the Court decision, Lilly Ledbetter, the gender discrimination victim who brought the case that led to the Court's eventual decision, testified about the human impact of the decision. The White House talked about "women like Ledbetter" and "Ledbetter's cause." Dry law was made into human drama because of a compelling, human protagonist.

By contrast, judicial nomination hearings tend to have all of the human drama of paint drying. Let's take, for instance, the nomination hearings of Judge Denny Chin, a judge on the Southern District of New York who President Obama nominated (and the Senate later confirmed) to a position on the United States Court of Appeals for the Second Circuit. As a district court judge, Chin had ruled in cases with human faces as compelling as Ledbetter's. Judge Chin sentenced Bernard Madoff to 150 years in prison for the many people he defrauded. During Chin's confirmation hearings, though, Senate Democrats asked Judge Chin about theoretical issues like "judicial restraint." When five months went by without a Senate vote on Judge Chin, Senate Democrats argued that they were upset by breaches of "Senate rules."

Imagine how much easier it would have been to confirm Judge Chin if his nomination was an occasion to reflect on the human implications of judicial nominations, and not the jurisprudential implications. No Madoff victims who saw justice done in Chin's sentencing decision played a major role in Chin's Senate confirmation hearing. Any Madoff victims telling their story would have been more likely to make the evening news or the cable news networks. A confirmation hearing could have, amazingly, gone viral. When the full Senate delayed voting on Chin, Senate Democrats or the Administration could have highlighted individual plaintiffs whose cases were on hold in the Second Circuit because the Senate would not hold a vote on whether to confirm Chin.

Politics is politics. Judicial nominations might feature judicial nominees and Senators bouncing around fancy legal ideas like judicial activism, but at bottom the political dynamics are not all that different from other things that the Senate does. And a Senate faced with more bipartisan nominees, and nominees framed in human terms, could help get the Senate moving on judicial nominees in Obama's second term.

David Fontana is Associate Professor of Law at George Washington University School of Law.