Law professor doubts Obama's plan to speed up appointments

By Jessica M. Karmasek | Jan 30, 2012





RICHMOND, Va. (Legal Newsline) - A University of Richmond law professor says he doubts the U.S. Senate will go along with a plan by President Barack Obama to speed up judicial appointments.

On Tuesday, during his State of the Union address, Obama called for an end to the stalling.

"Some of what's broken has to do with the way Congress does its business these days. A simple majority is no longer enough to get anything -- even routine business -- passed through the Senate. Neither party has been blameless in these tactics. Now both parties should put an end to it," he said.

"For starters, I ask the Senate to pass a rule that all judicial and public service nominations receive a simple up or down vote within 90 days."

Carl Tobias, the Williams Professor of Law at University of Richmond's law school, called Obama's offering a "fine idea," but said he doubted that the Senate would adopt it very soon.

"President George W. Bush and a number of senators have offered similar proposals in the past. However, partisanship has kept them from being adopted," he said.

The difficulties are only exacerbated during a presidential election year, Tobias said.

"One way that this could happen is to make it effective in 2013," he said. "Even then, I'm not sure the votes are there, as each side is worried about giving any advantage to the other."

Case in point: On Jan. 4, Obama announced a recess appointment of former Ohio Attorney General Richard Cordray to the post of director of the U.S. Consumer Financial Protection Bureau.

The CFPB was created by the Dodd-Frank regulatory overhaul and is tasked with regulating consumer financial products.

Democrats, including Obama, argued Republicans were "stonewalling" Cordray's nomination.

But Obama's controversial decision to appoint Cordray could backfire on him -- and have ramifications for judicial nominations, including Berkeley Circuit Judge Gina Groh and West Virginia attorney Stephanie Thacker's.

Groh was nominated by Obama to the U.S. District Court for the Northern District of West Virginia in May to fill the vacancy left by the 2006 death of Judge Craig Broadwater.

Thacker was nominated by the president in September to serve as a judge on the U.S. Court of Appeals for the Fourth Circuit. Thacker would replace Judge M. Blane Michael, who died earlier this year. Michael had held the position since 1993.

The U.S. Senate Judiciary Committee voted in October to approve Groh to the federal court and in November approved Thacker's nomination to the federal appeals court.

Both must now be confirmed by the full Senate.

But there have been threats from some senators, including U.S. Sen. Chuck Grassley, R-Iowa, to hold up Obama's nominations simply because of his recess appointment of Cordray.

In an interview earlier this month, Tobias said only time will tell.

"When the Senate begins to schedule other nominees, and how often, that's when we'll really know something," he said.

Tobias noted that there are some "practical issues" involved in moving along the nominees so quickly -- including timing, staff resources, recesses and the various evaluations that must be done of each nominee.

Being so, he said he can't be very optimistic.

"Still, Obama was right to try, and perhaps senators will listen or at least attempt to cooperate on judicial selection," he said.

From Legal Newsline: Reach Jessica Karmasek by email at

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