For decades, Republicans made judicial selection a priority and set the terms of debate. We’ve all heard the denunciations of "judicial activism," the insistence on "strict construction" and the scorn heaped on judges who "legislate from the bench." These catch-phrases were promoted as "principled" means of attacking the progressive Warren Court. In reality, they were tools for opening the bench to judges who would favor employers over employees, big corporations over little people, prosecutors over defendants, government over individuals, polluters over environmentalists and white civil rights plaintiffs over affirmative action for minorities. As Chief Justice John Roberts and his four conservative colleagues recently demonstrated by opening the floodgates for corporate dollars to flow into our political system, they have shed any pretense of judicial modesty and are pursuing their ideological agenda full tilt.
Obama’s election promised to block this rightward charge, but the administration has been slow to deliver, and Republican obstruction has taken a toll. During his first fourteen months in office, Obama nominated only fifty-six judges to fill more than 100 vacancies. George W. Bush nominated nearly twice that number in the same period. Because of GOP exploitation of Senate holds and filibuster threats, only eighteen of Obama’s nominees have been confirmed, and even nominees who were eventually confirmed unanimously were forced to wait months for a vote. During the same period, forty-two Bush nominees were confirmed by a Senate controlled by Democrats.
The delay is more striking given the moderate views of Obama’s nominees. By steering away from full-throated defenders of due process, equal protection and civil rights, the administration has avoided confronting conservatives’ distorted view of jurisprudence. Even last summer’s confirmation of Justice Sonia Sotomayor played out according to the GOP model. Under assault from the right, she was compelled to back away from her comment that a wise Latina could bring something special to the Court, instead accepting that all justices must come to the same conservative positions or be branded activists who legislate from the bench.
Fortunately, the president has picked up the pace of nominations, selecting Goodwin Liu for the Ninth Circuit Court of Appeals. Liu, a leading education and civil rights scholar, is one of Obama’s few Appeals Court candidates not simply being promoted from a lower court or building on a career as a prosecutor. His confirmation should be a no-brainer, but Republicans are gearing up to do battle. They see Liu as a threat to move up to the Supreme Court and as a challenge to their phony rhetoric. They also recognize that confirmation of Liu could give Obama room to nominate a progressive successor to Supreme Court Justice John Paul Stevens, who is expected to retire soon.
Will Obama step up to the challenge? He is showing signs of spunk. He fired a shot across the Supreme Court’s bow in his State of the Union address. After his energizing victory on healthcare, he bypassed Senate Republicans to recess-appoint controversial nominees to labor and civil rights positions. And he surely understands what is at stake. As FDR learned, conservative judges on a mission pose a serious threat to a president who wants to bring about democratic change. Obama must be bold in nominating judges who will impose the rule of law to protect individual liberty, equality, privacy and our political system. His legacy depends on it.