Assuming the filibuster is broken and Hamilton is confirmed, as expected, he will be only the third Obama appeals court nominee to win confirmation so far.
Republicans have artfully dragged their feet on judicial nominations. The first two appeals court nominees to be confirmed this fall were so uncontroversial that each was easily approved by a bipartisan vote in the Senate Judiciary Committee. Yet each waited months for a vote by the full Senate because Republicans blocked floor action.
When President Bush encountered what he thought was foot-dragging on judicial nominations, he rhetorically pounded the table in public, and Republicans set up an outside group to target Democratic opponents. From the start, Bush highlighted his judicial nominees, announcing the first 11 in a Rose Garden ceremony and overtly pushing a conservative agenda.
President Obama has played the game very differently. While Bush in essence played an outside game, Obama has played an inside game — quietly clearing the nominations with home-state Republicans, and seeking out nominees who are moderate liberals.
But the process so far has yielded dramatically fewer numbers of nominees and confirmations.
By this time in Bush's first year in office, he had nominated a total of 64 judges, compared with 26 for Obama. By this time, Bush had won confirmation of 18, including both appeals court and district court judges, compared with six for Obama. The numbers assume an even greater disparity when you realize that Obama has a hefty Senate majority of Democrats, while Bush actually faced a Democratic-controlled Senate in 2001.
In some ways, that makes the relative lethargy about judgeships even more puzzling to many conservatives, as well as liberals. Michael McConnell was in that first group of conservative judges appointed by President Bush in 2001. Now a professor at Stanford Law School, he says that on the rare occasions that a president comes into office with a real agenda — he names Franklin Delano Roosevelt, Ronald Reagan and Obama — then the courts can become a check on that agenda.
The courts, he observes, "were named by past presidents and confirmed by past Senates with different political ideas," so when new legislation or regulations are subjected to judicial scrutiny, those courts, populated by nominees of the past, are "going to serve as a kind of break to slow things down, sometimes to change directions."
To cite just one example from the Reagan administration's deregulation agenda, President Reagan sought to get rid of the requirement for air bags in automobiles — only to be blocked by the D.C. Court of Appeals.
That court has two openings right now. Neither has been filled by President Obama.
GOP Opposition Slows Obama's Judicial Nominees : NPR