After President Barack Obama wins confirmation of his first Supreme Court nominee, the Court will still lean conservative. And it will still decide only a handful of cases each year. The lower courts, in contrast, will have the final word in more than 99 percent of federal cases. These courts are up for grabs, and Obama's impact on them could be sweeping. Indeed, Obama may be able to completely reshape a conservative-dominated judiciary to one largely controlled by Democratic appointees -- even in a single term. ...
A full picture of the current and future judicial landscape could let the White House plan strategically, perhaps focusing on the district courts in the circuits likely to see the most turnover. The district courts in the 4th Circuit have ten current vacancies and 23 additional seats that may open up within Obama's first term. The respective numbers within the 5th Circuit (10, 23), 6th Circuit (4, 13), 8th Circuit (4, 14) and 11th Circuit (7, 15) are similarly stark. Filling these seats not only will influence the district courts themselves, but also will give the president more options when deciding which judges to elevate to the courts of appeals. Obama also might, as presidents before him often have done, extend his influence for decades by appointing extraordinarily young and talented lawyers to federal judgeships.
In short, while Obama may not impact the Supreme Court quickly, the lower courts are a different story altogether. A conservative Supreme Court may stem the tide somewhat, but the lower courts are still likely to impact the law in a significant way. Justice Robert Jackson said that the Supreme Court is "infallible" because it is "final." But the Supreme Court is final only when it decides a case, a relatively rare occurrence. The lower courts are final, and thus "infallible," more than 99 percent of the time. And unlike the Supreme Court, they present the president with a major opportunity to change the law's direction, even in his first term. The President thus should begin planning quickly after Judge Sonia Sotomayor becomes Justice Sotomayor if he wants to maximize that opportunity.
- Eric Haren
There is a lot to be done, which suggests the value of a Senate that centered more of its time on specific tasks, instead of being a general interest parallel branch of the legislature that is also compelled to address such things as health care:
Six months into President Obama's term, the Senate has confirmed no judges or U.S. attorneys, and several executive branch nominees have been in limbo for months. Members of the administration and both parties in Congress are blaming each other for the slow down.
It has been three months since the Senate last confirmed a Justice Department nominee. The man nominated to lead the U.S. Sentencing Commission has been waiting for a vote since early May. Ten [11?] nominated judges and 13 U.S. attorney nominees are also in a holding pattern.
Confirmations are a major area of presidential influence. One troubling delay -- which continues even with the Al Franken vote -- is that Dawn Johnsen's confirmation is still in a holding pattern. A true reformist leadership voice in the Office of Legal Counsel of fundamental importance after the events of the recent years, down to some troubling choices by the Obama Administration itself. Another nomination addressed another (still ongoing, with Rove being questioned) very troubling matter from the previous administration:
The White House has announced that Daniel Bogden, who in late 2006 was fired by the Bush administration as U.S. attorney for the district of Nevada, has been re-nominated for that position.
The importance of the lower courts is shown by the fact it is there where much of the action is going on in respect to such matters as state secrets and handling those detained in Gitmo and Bagram, including repeatedly holding that there is not enough evidence to hold them. Of course, the whole issue of military commissions and so forth is yet another important issue that is ongoing, largely under the radar.