Bench Memos

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Obama’s Keystone Kops Routine on D.C. Circuit Vacancies


If there’s anyone out there who has illusions that the Obama White House is competent on judicial nominations, today’s news of two nominations to the D.C. Circuit provides compelling evidence to the contrary. Consider:

1. President Obama has renominated Caitlin Halligan to a D.C. Circuit vacancy. Halligan’s original nomination last year, you may recall, was blocked by a Republican filibuster in December 2011, with the cloture petition receiving only 54 of the 60 votes needed to prevail. I wouldn’t have faulted the White House for incompetence if it had renominated Halligan in January 2012 (though I would have wondered what plan it had to achieve cloture). But what possible reason could there have been to delay the renomination for an additional five months?

2. President Obama has nominated Sri Srinivasan to another D.C. Circuit vacancy. As I reported more than two years ago—way back in early 2010—the White House had settled on Srinivasan for a D.C. Circuit nomination. But the Left then went after Srinivasan, in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo war-on-terror detainee issues. So the White House abandoned its plans to nominate him, only to revive them at this late date, when there is near-zero prospect of action on his nomination during the remainder of this year.

In addition, I’ve already heard concerns raised about the role that Srinivasan may have played, while representing the plaintiff in the Hosanna-Tabor case, in encouraging the Department of Justice to adopt the extreme position against religious liberty that the Supreme Court unanimously rejected. (Srinivasan himself rejoined the SG’s office, as principal deputy solicitor general, in August 2011.)

3. In February 2012, Joan Biskupic reported that “Barack Obama is close to becoming the first president in at least half a century to finish a full term without making an appointment” to the D.C. Circuit, but she relayed a White House spokesman’s assurance that Obama would “be nominating judges for the D.C. Circuit in short order.” Is nearly four months later “in short order”?

4. In late October 2011, I broke the news that the White House was planning to nominate NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit. Days later, an American Constitution Society blog and a Washington Post blog reported that Obama had asked the American Bar Association’s judicial-evaluations committee to conduct its pre-nomination assessment of Adegbile for that seat.

What ever happened to the anticipated Adegbile nomination? It’s now quite clear that Adegbile joined the “significant number of President Obama’s potential judicial nominees” who failed to pass the ABA committee’s screening.

5. Don’t forget that during the entirety of his first two years in office Obama failed to make any nominations to the two vacancies that existed throughout that period. Instead, he attempted to use a D.C. Circuit seat “as a political booby prize” by offering it to then-White House counsel Greg Craig as a means of easing Craig out of his job.


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