For court watchers, the big news in West Virginia this week was the unanimous confirmation of Judge Irene C. Berger (right) by the U.S. Senate. Tuesday’s 97-0 vote makes Berger the first black judge on the federal bench in West Virginia history.

But Berger’s relatively smooth passage notwithstanding, the confirmation process is apparently becoming more contentious. After Michael A. Fletcher of the Washington Post noted that the Obama administration has submitted fewer names during its first nine months in office than its predecessor, several commentators have suggested that part of the reason so few judges have been confirmed is that Senate Republicans have taken obstructionism to a new level.

In a widely-read piece published Monday, Slate‘s Doug Kendall said that Senate Republicans have slowed the confirmation process to a crawl by delaying up-and-down votes even for candidates unlikely to raise objections.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama’s agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so. Most bills and nominations pass through the Senate with no debate and only a voice vote on the Senate floor. But this requires every senator to play along. By stonewalling on every nominee so far, Minority Leader Mitch McConnell, R-Ky., is requiring his counterpart, Sen. Reid, to negotiate, or devote precious floor time, for every judicial confirmation.

An Oct. 23 study by Russell Wheeler of the Brookings Institution, a Washington think tank, concluded that the relatively few Obama nominees are receiving speedy hearings before the Senate Judiciary Committee, but little more.

It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three. 

Part of the issue, Wheeler wrote, may be that Obama is in a position to reshape the federal judiciary in ways that President George W. Bush never could. According to Wheeler, 41 percent of Obama’s nominees to federal District and Appeals courts would replace a Republican nominee, compared to 22 percent of Bush’s judges who replaced Democratic nominees.

(more…)

UPDATE: U.S. Sens. Robert C. Byrd and Jay Rockefeller have just recommended state Democratic Party chairman Nick Casey to President Obama for the federal judgeship in the Northern District.

There’s an old aphorism, repeated to me recently by a learned hand in West Virginia politics, that when you win a presidential election, you should immediately start taking over the government.

Some observers, as noted by the Washington Post‘s Michael A. Fletcher, are beginning to wonder when President Obama is going to focus more attention on the 96 vacancies in the federal judiciary. As of Oct. 18, Obama has forwarded 23 nominations for federal district and appeals court judgeships to the Senate for consideration. By comparison, Fletcher wrote, President George W. Bush submitted 95 names over the same period following his election.

To be fair, the Obama administration (unlike its predecessor) has had to contend with an opening on the U.S. Supreme Court, and may be preparing for the possibility of one or two more in the relatively near future, given the speculation surrounding Associate Justice John Paul Steven’s retirement and the apparent precariousness of Associate Justice Ruth Bader Ginsburg’s health. These high-profile appointments may have pushed other judicial nominations to the back burner.

What does this mean for West Virginia? The Mountain State currently has two open seats on the federal bench, one each in the Northern and Southern Districts. Kanawha Circuit Judge Irene C. Berger’s nomination to the opening created when U.S. District Judge David A. Faber took senior status at the end of last year made it out of the Senate Judiciary Committee on Oct. 1. She is now awaiting endorsement by the entire Senate.

(more…)