Alliance for Justice (AFJ) reports that President Barack Obama will likely finish his first term with many more vacancies in the federal judiciary than when he was inaugurated. Today, seventy-five seats on the federal bench remain open, compared with fifty-three in January 2009. The shortage of judges has generated a backlog such that approximately thirty courts have been officially designated as being in a state of “judicial emergency”—that is, more cases per judge than he or she can handle fairly and efficiently—compared with only eighteen in 2009, thereby leaving important issues of law unsettled and many injuries unredressed.
Only 80 percent of the president’s district and circuit court nominees have been confirmed by the Senate. In comparable periods in their presidencies, George W. Bush and Bill Clinton had confirmation records of 90 percent and 84 percent, respectively. Obama has also nominated fewer judges and done so much later than Bush or Clinton did during their first terms.
As a result of the White House’s laggardness, right-wing justices continue to dominate the federal courts—meaning that many of Obama’s most important legislative achievements could be eviscerated and his legacy dissipated, because most of the circuit courts of appeal are controlled by Republican appointees.
Republican obstructionism bears a large share of the blame for the situation, but Obama’s reluctance to expend political capital fighting for nominees is also at fault.
The GOP foot-dragging began with Obama’s first nominations. The Republicans have taken advantage of senatorial courtesy, which requires that both home-state senators, regardless of party, consent to a nomination. Republican senators have delayed committee hearings by taking an inordinately long time giving their consent, and in some cases have simply refused it.
Committee proceedings have also been slowed down. In the past the committee processed district judges quickly, often in groups. Republicans now insist on close individual scrutiny of every district court nominee, slowing the process even more.
But it is on the Senate floor that the GOP’s obstructionist tactics have gone into high gear. Much of the upper chamber’s business is carried on by unanimous consent agreements, and Republicans have repeatedly balked at giving unanimous consent to take up judicial nominations. Secret and public holds, filibusters, and thirty-hour “debates,” if cloture is voted, further slow down the process. Many nominations unanimously or overwhelmingly approved in committee have languished on the floor for months; when the vote finally comes, it is usually overwhelmingly for approval, often by voice vote.
Obama’s response to these GOP tactics has been weak and ineffectual. First, he has failed to send up enough nominees. Second, he has neglected to think and act strategically with respect to those he has nominated. The lack of strategic thinking is reflected in the philosophy and relative age of Obama’s judges. Where the Republicans made sure to appoint solidly conservative judges who would serve for many decades, Obama has focused on finding nonideological or middle-of-the-road candidates. Three-quarters of his circuit court nominees are former prosecutors, and a very large proportion are or were in private practice; many of the latter are millionaires. Only a handful are or have been legal aid lawyers, public defenders or public interest lawyers; few have been politically active. Public interest lawyers in the Fourth Circuit, for example, which has a majority of Democratic appointees, have complained that the Obama appointees are only a little more liberal than their Republican colleagues. Also, the average age of Obama’s circuit court judges is 54.1 (and seventy-three of his 214 nominees to both district and appeals courts are 55 or older); the average age of those nominated by Ronald Reagan and the two Bushes was about 49.4 years.
Third, the White House has failed to fight for its nominees. A case in point is the mishandling of the nomination of Goodwin Liu, a truly liberal candidate, to the Ninth Circuit Court of Appeals. The nomination was sent up with only one other choice rather than in a group, enabling the Republicans to concentrate their fire on Liu. Even so, some observers believe that if the president had fought for him, sixty votes could have been found. But there was little White House support and Liu finally withdrew.
In one area, Obama has made a very great difference: diversity. Calling his nominees “the most diverse in terms of race and gender in American history,” AFJ reported in November that 44 percent of his nominees were women, 37 percent were people of color, and six nominees were openly LGBT, with three of the latter confirmed so far.
In his new book The Oath, Jeffrey Toobin writes that Obama believes that elections rather than the courts are “the principal vehicle for social and political change.” But the administration’s primary concern should be to prevent judicial mutilation of what his elections have achieved. Many of the president’s signature laws and policies—the Dodd-Frank Act, including the provisions creating a new Consumer Financial Protection Bureau (CFPB); the Affordable Care Act; and new regulations for the SEC and many other federal agencies—require numerous regulations to put them into effect. All face massive legal assaults by business and other interests.
Most of these attacks will come before the DC Circuit Court of Appeals, which has long been a graveyard for federal regulation. Dominated by right-wing ideologues, the circuit has already struck down parts of Dodd-Frank and other financial regulations, new EPA and FCC rules, and cigarette advertising rules. The court has just heard a challenge to Obama’s recess appointments, and a new lawsuit attacking the constitutionality of the CFPB will probably be filed soon. There were currently three vacancies on the court (soon to be four), but so far the president has made only two nominations and done little to get them confirmed.
To avoid further damage to his legacy, President Obama should immediately form a task force to put together a pool of qualified liberal candidates from which he can choose twenty to thirty circuit and district court judges; Democratic senators involved in the process must also move quickly. The circuit court nominees should be sent to the Senate by this spring, and in groups to prevent the Republicans from concentrating their fire on just one or two. The president and the Democratic senators must then fight for the nominees in the Senate and before the general public.
The Democrats must also tighten the courtesy hold and filibuster rules so that opponents will have to oppose a nominee publicly on the merits and can no longer block nominees secretly with no repercussions. The Judiciary Committee should also not tolerate stalling; its chair, Patrick Leahy, must not permit GOP senators to exploit every opportunity to obstruct.
Finally, and perhaps most important, the Democrats’ efficient voter-turnout operations and grassroots advocacy groups must be mobilized, and the president must lend his bully pulpit to the effort to push more appointees through. Should the Republicans regain the Senate majority in 2015–16, they will bury most of his nominees in order to keep the seats available for a possible Republican president in 2018, just as they did to Clinton in 1999–2000. If that happens, the Obama legacy will be left in tatters.
Herman Schwartz recently wrote (Oct. 8) that “nowhere is the 1 Percent [Supreme] Court’s bias in favor of the wealthy and powerful more blatantly revealed than in its radical rewrite of antitrust laws.”