Two months ago, Jeffrey Toobin noted what a missed opportunity the President was facing with regards to judicial nominations:
Now vacancies abound. Just eight months into his first term, Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench—more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. There are five vacancies on the Fourth Circuit alone; just by filling those seats, Obama can convert the Fourth Circuit, which has long been known as one of the most conservative courts in the country, into one with a majority of Democratic appointees. On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total; home-state senators of the President’s party generally take the lead in selecting nominees for these seats, but Obama will have influence in these choices as well. Seven appeals and ten district judges have been named so far. George W. Bush, in the first eight months of his Presidency, nominated fifty-two.
Two months later, and the numbers haven't much improved:
Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts. ...
By this point in 2001, the Senate had confirmed five of Mr. Bush’s appellate judges — although one was a Clinton pick whom Mr. Bush had renominated — and 13 of his district judges. By contrast, Mr. Obama has received Senate approval of just two appellate and four district judges.
There has been some recent movement. Last Monday, the Senate confirmed Andre Davis to the United States Court of Appeals for the Fourth Circuit, shifting the balance on the Richmond-based panel — once considered the nation’s most conservative — to a majority appointed by Democrats.
And on Tuesday, Democrats moved to vote on confirming David Hamilton as an appeals court judge for the Seventh Circuit, based in Chicago. The nominations of both Mr. Davis and Mr. Hamilton had been stalled before the full Senate for five months.
Still, the pipeline behind them is emptier than under Mr. Bush. And Mr. Obama has not submitted nominees to fill two vacancies on the powerful District of Columbia appeals court, which has no home senators to consult.
At least in terms of nomination hearings, however, business is starting to pick up:
More than two thirds of Obama nominees had received hearings as of October 20 (and one more got an October 21 hearing). Those who haven’t had hearings are mainly late September and early October nominees. This hearing rate contrasts sharply with that for early Bush nominees. As of October 20, about a third had received hearings, and only a fifth of circuit nominees had. Most Obama nominees who have received hearings, moreover, got them promptly—average days from nomination to hearing were around the 50-day mark, and 43 for circuit nominees. The few Bush circuit nominees who got hearings in the first-nine-months waited an average of 116 days.
And not that Presidential partisanship strictly tracks judicial ideology, but there's hope in what may come:
In his eight years in office, President Bush appointed more than a third of the active court of appeals judges who were on the bench on October 20, 2009—55 of 158—but his ability to affect those courts’ decisions was limited by the fact that only 25 percent of his appointees replaced appointees of Democratic presidents. (By contrast, 52 percent of President Clinton’s circuit appointees replaced Republican appointees.) As of October 20, 2001, six of President Bush’s 24 circuit nominees—again, 25 percent—replaced or would have replaced Democratic appointees.
Forty percent of President Obama’s early circuit nominees would replace Republican appointees, which may point to greater changes in the courts of appeals’ party-of-appointing-president composition than Bush could achieve.
There are currently 98 judicial vacancies, 79 of which have no replacement nominated yet. As for what kind of nominees we may be seeing, Toobin points us to this October 2008 explanation from then-Sen. Obama, which you'll alternately find frustrating and promising:
Justice (John) Marshall was pretty good ... but those were some different times. There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, (Thurgood) Marshall. But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today.
Generally, the court is institutionally conservative. And what I mean by that is, it's not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn't give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.
I'm not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. ... So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.
I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.
That, I think is the kind of justice that I'm looking for -- somebody who respects the law, doesn't think that they should be making law ... but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice.
That's the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up. That's inherently the role of the court. And if somebody doesn't appreciate that role, then I don't think they are going to make a very good justice.
President Obama has a remarkable opportunity to shape American life through his judicial nominees. Let's hope he and our sixty-Senator majority takes full advantage of this window.