This week, President Barack Obama nominated two government attorneys, Raymond Chen and Todd Hughes, to Federal Circuit judgeships. But will Republicans actually allow them to be confirmed? While both men are historic and well-qualified nominees, congressional observers believe that during this session in particular Senate Republicans will delay the administration's nominations in an attempt to affect policy.
Hughes and Chen would add noteworthy diversity to the Federal Circuit, and the federal courts in general.
Chen, the deputy general counsel for intellectual property law and solicitor for the Patent and Trademark Office, would be the first Asian American nominated to the Federal Circuit in more than 25 years. Chen earned his B.S. in electrical engineering from UCLA, and before he earned his J.D. from NYU he worked as a scientist for Hecker & Harriman, specializing in patent prosecution for electronics and computer-based technologies. His extensive, technically based background in patent law makes him a perfect fit for the Federal Circuit, which hears all appeals from the United States Board of Patent Appeals and Interferences.
Hughes is the deputy director of the Department of Justice's commercial litigation branch for the civil division. If confirmed, he will become the first openly gay federal appeals court judge in U.S. history. Hughes received his A.B. from Harvard College and earned a joint J.D. and M.A. in English from Duke University. His practice has focused on veteran's benefits, governmental personnel law, international trade and government contracts, all issues in the jurisdictional purview of the Federal Circuit Court.
In the news we've seen the confirmation dramas of various cabinet appointees (Hagel, Brennan, Kerry/Rice), but the Senate Judiciary Committee has been delaying and outright blocking federal judicial appointments for years.
There are currently approximately 85 judicial vacancies in the federal courts; of these the American Constitution Society considers approximately 30 to be "judicial emergencies" due to the number of filings each judge on that court would be responsible for. A Circuit Judge position on the Ninth Circuit Court of Appeals has been vacant since 2004, and there is currently no nominee for the position.
The day after the Hughes and Chen nomination, the Senate Judiciary Committee held over 15 more judicial appointees.
Current Senate Republicans didn't create the system by which Senators can block presidential appointments; the filibuster and nominee hold have been used by both parties for years. However David Weigel at Slate notes that what's striking about the current use is that it seems to be the best, and possibly only, tool Republican Senators have to make policy right now.
While cabinet appointees can effect policy change now, judicial nominations are far more entrenched in the ideological chasms between the parties. Each nominee to a District or Circuit Court is a potential Supreme Court Justice down the line, in the eyes of some Senators on the Judiciary Committee (and rightly so, given that all but one current Supreme Court Justice served as federal judges before being nominated to the high court). Freshman Senator Ted Cruz (R-Texas), former solicitor general of his state, has been noted recently for asking unusually intense and specific questions about nominee's judicial philosophies on a range of subject including affirmative action and presidential power.
Will Senate Republicans allow politics to interfere with more vital judicial appointments? Will they oppose Hughes simply because he's gay (the first time Obama a gay man to the federal courts, he went without a hearing by the Judiciary Committee for so long he withdrew)? Because of its esoteric jurisdiction, the Federal Circuit will likely never play a leading role in the culture wars, but it seems likely Obama's nominees won't get to sit on a federal bench for years, if at all.