Itchin’ for a Fight

Senators express disapproval of Obama judicial nominees



President Barack Obama last week re-nominated 33 individuals to federal benches, several of whom faced stiff resistance when originally nominated.

The judicial nominations come as the president faces stiff confirmation battles for some of his cabinet nominations, including over secretary of defense nominee Chuck Hagel.

The judicial nominations have raised concerns among court-watchers of increased judicial activism and maneuvering for potential Supreme Court vacancies.

“He wants to appoint judges based on their empathy rather than based on their commitment to the law,” said Carrie Severino, chief counsel for the Judicial Crisis Network, a judicial watchdog group.

Severino highlighted Caitlin Halligan’s nomination to the District of Columbia Circuit Court of Appeals. Citing her stated positions on affirmative action, gun rights, gay rights, and environmental issues, Severino said Halligan “has staked out a position that is well left of the American people.”

Elizabeth Slattery, a legal policy analyst at the Heritage Foundation, said Halligan is “well outside the mainstream on some pretty controversial issues.” Halligan has also argued against indefinite detention and military tribunals for detainees at Guantanamo Bay, Slattery said.

Halligan has been nominated to the D.C. Circuit Court of Appeals several times, with her nomination stalling each time in the Senate. Senate Republicans held up her first nomination over ideological concerns.

“I have a number of concerns regarding Ms. Halligan’s activist record. There are additional concerns regarding her judicial philosophy and her approach to interpreting the Constitution,” Sen. Chuck Grassley (R., Iowa) said on the Senate floor in December 2011, according to his prepared remarks.

Senate Minority Leader Mitch McConnell (R., Ky.) raised a similar objection. “We shouldn’t be putting activists on the bench,” he said, according to the Washington Times.

Obama first nominated Halligan in 2010 and re-nominated her at the beginning of the 112th Congress in January 2011.

Republicans blocked her third nomination in August 2012, after which Obama promptly promised to re-nominate her for a fourth time the next month.

This is Halligan’s fifth nomination, setting up yet another confirmation battle between the president and the Senate.

Elissa Cadish, nominated for the United States District Court for the District of Nevada, has also faced public opposition to her nomination. Obama first nominated Cadish in February 2012 at the recommendation of Sen. Harry Reid (D., Nev.).

However, Nevada’s other senator, Republican Dean Heller, objected to her nomination over concerns of her support for the Second Amendment. Cadish wrote in a 2008 questionnaire that she did not think that a constitutional right to keep and bear arms existed, but said that she would enforce the laws “as they exist.”

“I believe an individual citizen has the constitutional right to keep and bear arms and cannot in good conscience support a nominee whose commitment to the Constitution’s Second Amendment is in doubt,” Heller said at the time, according to the Nevada Appeal.

Heller remains opposed to Cadish’s nomination. “Sen. Heller’s views on the Cadish nomination remain unchanged,” Chandler Smith, a Heller spokeswoman, wrote in an email to the Free Beacon.

Patty Shwartz is another Obama nominee with a history of opposition. Sen. Bob Menendez (D., NJ) initially opposed Shwartz, Obama’s nominee to the Third Circuit Court of Appeals. Shwartz currently serves on the U.S. District Court for New Jersey.

Menendez released a statement indicating his opposition to her nomination after interviewing Shwartz.

“In my opinion, Judge Shwartz did not adequately demonstrate the breadth of knowledge of constitutional law and pivotal Supreme Court decisions such as Citizens’ United that we should expect from a United States Circuit Court judge,” Menendez said in the statement provided by his office to the Free Beacon.

However, Mendendez relented after talking further with Schwartz. “Following an in-depth discussion with Judge Patty Shwartz earlier today, U.S. Sen. Robert Menendez announced that he will support her nomination to serve on the Third Circuit Court of Appeals,” a statement from his office said.

Menendez praised Shwartz’s re-nomination earlier this year.

The other D.C. Circuit Court nominee, Srikanth Srinivasan, could face scrutiny for his involvement in an effort to get St. Paul, Minn., to drop a lawsuit before the Supreme Court. Grassley has expressed concern about the incident, according to the Wall Street Journal.

The D.C. Circuit Court “has been a priority for a while,” said Slattery. Both Slattery and Severino indicated that the D.C. Circuit Court is often viewed as a feeder for the Supreme Court, giving appointments to that court greater significance.

Both Obama and President George W. Bush made nominations to the D.C. Circuit Court to replace the slot vacated by now-Supreme Court Chief Justice John Roberts in 2005. Bush initially nominated Miguel Estrada, whom Senate Democrats filibustered. Republicans then filibustered Halligan after her nomination.

Severino said that while the D.C. Circuit Court does have vacancies, it does not have as great a caseload as other circuits, making appointments there less vital. The president is more interested in creating a “deep bench” for potential Supreme Court nominations, she said, than in filling the vacancies.

“The D.C. Circuit is not as short staffed as other places, but that’s where he’s putting his nomination effort,” she said.

Slattery said there are currently 63 vacancies in the federal district courts and 17 vacancies in the circuit courts.=

Andrew Evans   Email Andrew | Full Bio | RSS
Andrew Evans is an assistant editor at National Affairs and a former reporter for the Washington Free Beacon, where he covered government accountability and healthcare issues.

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