Barack Obama judicial appointment controversies


U.S. President Barack Obama nominated over 400 individuals for federal judgeships during his presidency. Of these nominations, Congress confirmed 329 judgeships, 173 during the 111th & 112th Congresses and 156 during the 113th and 114th Congresses.
Republicans successfully blocked some confirmations, either by filibuster or voting against cloture, even while the Democratic caucus held a Senate majority. Senator Chuck Grassley, then-ranking Republican on the judiciary, said that more nominees could have been considered if not for the January 2012 National Labor Relations Board recess appointments; the Supreme Court later unanimously ruled these January 2012 appointments illegal in NLRB v. Noel Canning.
In response, Senate Majority Leader Harry Reid invoked the so-called parliamentary nuclear option on November 21, 2013, which changed the Senate's confirmation threshold for all executive nominees except for the Supreme Court. While Senate confirmations of Obama judicial nominees rose in 2014 following the "nuclear option," the greatest number of rejection of Obama nominees occurred following the 2014 United States Senate elections, where the Republicans gained nine seats and majority control of the chamber. Obama ultimately nominated 70 individuals for 104 different federal judgeships during this Congress, with 20 confirmations.
With the death of Antonin Scalia in February 2016 in the beginning of a presidential election year, the Republican majority in the Senate made it their stated policy to refuse to consider any nominee to the Supreme Court, arguing that the next president should be the one to appoint Scalia's replacement. Obama nominated Merrick Garland for the open Supreme Court seat, but the Senate did not consider the nomination.

List of unsuccessful federal judicial nominations

Obama made 80 nominations for federal judgeships that were not confirmed by the Senate. Of these, 7 were withdrawn by Obama, while the other 73 expired at an adjournment of the Senate, including 54 that were pending at the close of the 114th Congress. As of December 4, 2023, 23 of his unsuccessful nominees had been nominated to federal judgeships by subsequent presidents, with 22 of them having been confirmed.

Nomination of Merrick Garland to the Supreme Court

Following the death of Associate Justice of the Supreme Court Antonin Scalia in February 2016, President Obama nominated Merrick Garland to fill Scalia's seat on the Supreme Court. At the time of his nomination, Garland was the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Scalia's death led to an unusual situation in which a Democratic president had the opportunity to appoint a Supreme Court nominee while the Republicans controlled the United States Senate; before Scalia's death; such a situation last occurred when a Senate Republican majority confirmed Grover Cleveland's nomination of Rufus Wheeler Peckham in 1895. While Garland himself was not personally controversial, Scalia was considered one of the more conservative members of the Supreme Court. Political and legal commentators noted that a more liberal replacement could shift the Court's ideological balance for many years into the future, as the confirmation of Garland would have given Democratic appointees a majority on the Supreme Court for the first time since the Harry Blackmun's confirmation in 1970.
Following Scalia's death, Republican Senate leaders announced that they did not plan to consider any Supreme Court nomination during the president's last year in office, citing the upcoming 2016 United States presidential election. Senate Democrats argued that there was sufficient time to vote on a nominee before the election. Garland's nomination ultimately expired on January 3, 2017, with the end of the 114th Congress. The nomination remained before the Senate for 293 days, the longest such nomination in American history Supreme Court nomination.
On January 31, 2017, President Donald Trump announced his selection of Judge Neil Gorsuch for the open Supreme Court seat. Gorsuch was confirmed on April 7, 2017, by a Republican-majority Senate, 54–45 and sworn in on April 10, 2017.

Failed, stalled or filibustered appellate nominations

Failed nominations

  • United States Court of Appeals for the Second Circuit
  • * Robert Chatigny, to seat vacated by Guido Calabresi: during the 111th Congress, Connecticut Senator Chris Dodd recommended Chatigny for a judgeship on the Second Circuit, and he was nominated by President Obama on February 24, 2010. Critics of Chatigny's nomination highlighted his controversial performance during the trial of serial killer Michael Bruce Ross, for whom Chatigny granted a temporary stay of execution. In addition, opponents cited a 2001 ruling declaring that a sex offender registration system violated a convict's civil rights and right to privacy, a ruling that drew bipartisan condemnation. His nomination was returned by the Senate on August 5, 2010, and Dodd, his main sponsor, did not seek reelection to the U.S. Senate that year. Chatigny removed his name from consideration and was not renominated. Obama ultimately chose U.S. District Judge Christopher F. Droney to fill the seat, and the Senate confirmed Droney without opposition on November 28, 2011.
  • United States Court of Appeals for the Ninth Circuit
  • * Goodwin Liu, to newly created seat: Liu was nominated on February 24, 2010. His nomination was returned by the Senate on August 5, 2010. Liu had faced opposition from Republicans who described him as an "extreme liberal" because of his outspoken support of same-sex marriage and affirmative action, and his 2008 article advocating for Constitutional protection of welfare benefits. He was also denounced for his personal criticism of the Supreme Court nominations of John Roberts and Samuel Alito, and his consideration as a possible Supreme Court candidate. Liu was renominated at the start of the 112th Congress. On May 17, 2011, Senate Majority Leader Harry Reid filed for cloture on Liu's nomination, with 60 votes needed to proceed to a floor vote on Liu's nomination; the cloture motion attracted only 52 of the 60 aye votes required. On May 25, 2011, Liu wrote to Obama requesting that his nomination be withdrawn due to the improbability that he would receive a floor vote. On July 26, 2011, Governor Jerry Brown nominated Liu to a seat on the Supreme Court of California, and he was sworn in on September 1, 2011. Obama nominated U.S. District Judge Jacqueline Nguyen to the Ninth Circuit seat to which Liu had been nominated, and the Senate confirmed her without opposition on May 7, 2012.
  • United States Court of Appeals for the Federal Circuit
  • * Edward C. DuMont: DuMont was nominated to the Federal Circuit on April 14, 2010. If confirmed, DuMont would have been the first openly gay United States appeals court judge. The Senate Judiciary Committee did not schedule a hearing on the nomination despite holding hearings and votes for two later nominees to the same court. A spokesperson for Senator Chuck Grassley, the ranking Republican on the committee, said in August 2011 only that "There are questions in Mr. DuMont's background investigation that have to be resolved." In November 2011, the National Law Journal reported that DuMont had submitted a letter to President Obama, asking that the president withdraw his nomination because one or more senators of the minority party on the Committee refused to allow the committee to give him a hearing; Obama withdrew DuMont's nomination later that day. In November 2011, Obama nominated Richard G. Taranto to the seat to which DuMont had been nominated, and the Senate confirmed him without opposition on March 11, 2013.
  • United States Court of Appeals for the Seventh Circuit
  • * Victoria F. Nourse, to a seat vacated by Terence T. Evans: Nourse, a former counsel for the U.S. Senate Judiciary Committee, was recommended by Senator Russ Feingold After defeating Senator Feingold in the 2010 midterm elections, newly elected Senator Ron Johnson blocked Nourse's nomination. Nourse was not renominated. Obama nominated Donald Karl Schott, who was approved by the Judiciary Committee but did not receive a vote on the floor. The seat was ultimately filled in 2018 by President Trump nominee Michael B. Brennan.
  • * Myra C. Selby, to a seat vacated by John Daniel Tinder: Selby, the first black American and the first woman appointed to the Indiana Supreme Court, was nominated by President Obama on January 12, 2016. Republican Senator Dan Coats blue slipped the nomination, and the nomination stalled out in the Judiciary Committee. The seat was ultimately filled in 2017 by Trump nominee Amy Coney Barrett, who would later join the Supreme Court following the death of Ruth Bader Ginsburg.
  • United States Court of Appeals for the Tenth Circuit
  • * Stephen Six, to seat vacated by Deanell Reece Tacha. Former Kansas Attorney General Six was opposed by both home state senators. Republicans claimed that he was a liberal extremist who would substitute his personal opinions for the law and the Constitution. Six's critics strongly condemned his conduct in a 2008 investigation of physician George Tiller, who was charged with performing illegal late-term abortions. Six was accused of improperly quashing a subpoena for Tiller's patient records. Based on this criticism, the Senate Judiciary Committee did not act upon the nomination, and it was returned to the president on December 17, 2011, pursuant to the rules of the Senate. President Obama later chose Kansas Supreme Court Justice Nancy Moritz to fill the seat to which Six had been nominated, and the Senate easily confirmed Moritz on May 5, 2014.
  • United States Court of Appeals for the District of Columbia Circuit
  • * Caitlin Halligan, to seat vacated by John Roberts: on September 29, 2010, President Obama nominated New York Solicitor Halligan. Her argument that "gun manufacturers, wholesalers, and retailers contributed to a 'public nuisance' of illegal handguns in the state ," prompted critics to claim that she was a liberal ideologue who would not uphold the Second Amendment and would base rulings on personal opinion rather than the law. Halligan's nomination failed to reach the threshold for cloture. Obama renominated Halligan to the D.C. Circuit in June 2012, The nomination was again returned to the President on August 3, 2012, and Obama renominated Halligan to the seat for a third time on September 19, 2012. On March 22, 2013, the President officially withdrew Halligan's nomination. On June 4, 2013, Obama nominated Patricia Millett to fill the vacancy, and the Senate confirmed her on December 10, 2013.