A new academic article says President Barack Obama's legal shop has been trying to cut down on its interaction with academics, activists and Justice Department lawyers, restricting the flow of information about how Obama's lawyers select new federal judges.
The article appears in the current issue of the journal Judicature. It casts a harsh light on the Obama administration’s efforts with judicial nominations, scrutinizing both the selection process and the effort that Obama and his advisers have put into it.
A White House spokesman, asked for a response, said the administration has moved “vigorously” to fill vacancies on the bench.
Among the topics covered in the article is the relationship between the White House Counsel’s Office and outside interest groups interested in judicial nominations. The article quotes one advocate who says that, after the November elections, when Democrats lost control of the House and nearly the Senate, the administration began screening e-mails in an attempt to “clamp down” on communication.
The advocate, who is not named, is quoted saying the White House lawyers have a new “filter” on their e-mail system. “Individuals I know who used to communicate with the White House now get an automatic bounce back,” the advocate said.
(Update (7/18): White House spokesman Eric Schultz said the allegation is not true and that the White House staff does not “filter” e-mails.)
The article is part of a 42-page package on “Obama’s Judiciary at Midterm,” by political scientists Sheldon Goldman of the University of Massachusetts at Amherst, Elliot Slotnick of Ohio State University and Sara Schiavoni of John Carroll University. (Click here for the Web site of Judicature, which is subscription-only and published by the American Judicature Society.)
The political scientists write that the White House shut out them, too, as they tried to put together the package. Their work is the latest in a long-running series.
“Tellingly, no one from the White House Counsel’s Office was able or willing to meet with us — the first time in our over 30 years of conducting our research on judicial selection that we have not had cooperation from that office,” the researchers write.
They add: “While the perspective from the White House Counsel’s Office would have been welcome, we believe that our other sources have enabled us to provide an accurate portrait of the successes and failures of the president’s judicial selection team. Other sources included interest group participants from groups along the ideological continuum.”
The article comes out as the lawyer who runs the White House’s judicial selection process, Susan Davies, is preparing to leave the administration to teach at Harvard Law School. Chris Kang, another White House lawyer who has worked primarily in legislative affairs, is expected to handle judicial nominations, at least in the short term.
The portrait the political scientists provide is not especially flattering, concluding that “it is hard to characterize the Obama nomination record as one of great success.” Echoing reporting that has appeared elsewhere, including in The National Law Journal, they note the historic gender and racial diversity of the president’s appointees but also describe the relatively slow pace of nominations and confirmations.
Contributing to the problems is a White House process that at times has been disorganized and insular, according to the article. Counsel’s offices since the Reagan administration have held regular, face-to-face meetings with Justice Department lawyers to make decisions about judicial nominees, but Obama’s aides scaled back the meetings and reduced DOJ’s involvement.
Moreover, the article says, neither of Obama’s first two counsel, Gregory Craig and Robert Bauer, took an active interest in the selection of judicial nominees, leaving the process up to deputy counsel Cassandra Butts and Davies. The Obama administration’s “judicial selection machinery,” the article says, “suffered from organizational and coordination weaknesses.”
White House spokesman Eric Schultz disputed the idea that they’ve moved slowly. “The administration has moved swiftly to address the judicial vacancy crisis,” he said in an e-mailed statement today. “We have worked vigorously to nominate judicial candidates of extraordinary intellect, diverse backgrounds and sterling credentials. We will press forward with candidates who have a steadfast commitment to the rule of law because Americans from all walks of life deserve a functioning judiciary.”
The pace of nominations and confirmations has increased since the start of the Obama administration. In the first five months of 2011, Obama nominated more judges than in all of 2009. And while Obama lags behind George W. Bush and Bill Clinton in the number of appointees at this point in their presidencies, most of the gap is on the district court level, not the high-profile circuit court level. Obama, unlike Bush in his first two years, also has appointed two Supreme Court justices.
As the political scientists note, Obama has appointed a far more diverse group, by gender and race, than any other president. Half of the district and circuit judges confirmed during 2009 and 2010 are women, compared to 21% under Bush and 31% under Clinton. Also among Obama’s appointees his first two years, 27% are black, 10% are Asian-American and 7% are Hispanic. He has put forward three openly gay nominees.