Senate Republicans are letting President Obama fill a few important slots in his administration, but they haven't given an inch where it really counts—on the federal judges who could define his legacy for generations.
Judicial nominees were never going to escape the tyranny of the filibuster. The Democrats' threatened "nuclear option" wasn't going to apply to prospective judges. And neither does the deal that senators struck giving Obama his administration picks and preserving the filibuster.
This means Obama remains at risk of losing his best chance to influence history after he's gone.
The judiciary is "every president's lasting legacy," says Michael Gerhardt, director of the University of North Carolina's Center for Law and Government. Indeed, federal judges, whose rulings shape every area of American life, typically outlast the presidents who appointed them by years, even decades. And in most cases, especially on controversial issues, their legal outlooks tend to mirror the worldviews of the presidents who picked them. But the slow pace of Obama's nominations to federal trial and Appeals Courts, and Republican resistance to his choices both before and after they are made, could reduce the impact of his two terms.
"For the first time since 1992, there have been more than 60 vacancies for five straight years" on federal trial courts, says Alicia Bannon, counsel for the Democracy Program at New York University's Brennan Center for Justice. "That has very serious implications for the functioning of our trial courts and for President Obama's legacy."
When Obama came into office, 60 percent of federal appellate judges had been named by Republicans and 40 percent by Democrats. Judicial scholar Russell Wheeler of the Brookings Institution says Obama's appointments had shifted that ratio to 49 percent Republican, 51 percent Democratic. Six months ago, Wheeler predicted Obama might be able to get to 58 percent. But now? "I may have been overly optimistic," he says, citing the slow pace of nominations and confirmations.
The U.S. Appeals Courts, also called Circuit Courts, have 17 vacancies, and seven nominations are pending. The U.S. District, or trial, Courts have 68 vacancies, and 22 nominations are pending. Numerically, Wheeler says, Obama is doing about the same as George W. Bush and Bill Clinton on confirmation of appellate judges. But Obama's District Court choices have waited much longer: an average of 223 days from nomination to confirmation, up from 164 days during Bush's tenure to this point and 98 days during Clinton's, according to Wheeler.
Obama has been criticized from all corners for being slow to make nominations in the first place. "He hasn't taken lower courts that seriously," says Carrie Severino, chief counsel of the conservative Judicial Crisis Network. But some observers suspect that at least part of the slow pace stems from Republican senators refusing to agree in advance on nominees from their states, as has been routine in the past.
The statistics seem to support the argument. Wheeler found that in the cases of 14 vacancies involving states with two GOP senators, it has taken an average of 349 days for Obama to nominate a successor; that compares with 197 days for 17 vacancies in states with two Democratic senators. There is also a disparity for District Courts—434 days for states with GOP senators, 390 for those with Democrats.
While Obama's overall numbers are in line with Bush's and Clinton's on Appeals Court judges, Republicans are giving him a particularly hard time on nominations to the U.S. Court of Appeals for the D.C. Circuit. There's no mystery why: The court is often a springboard to the Supreme Court, and its cases involve a broad sweep of federal agencies and issues, including the Environmental Protection Agency, the National Security Agency, the National Labor Relations Board, the constitutionality of Obama's recess appointments, and executive power in general.
One Obama nominee to the court, Caitlin Halligan, withdrew in the face of a filibuster threat. Another, Sri Srinivasan, was confirmed in May. In June, when Obama nominated three people as a package to fill out other vacancies on the court, GOP Sen. Chuck Grassley of Iowa accused him of trying to "pack" the court and introduced a bill to reduce its size. The fate of the Obama Three is unclear, but without them, Democrats are nearly certain to lose ground on the already conservative court. All four active GOP appointees are under age 70, compared with only two of four named by Democrats. Of the six senior appointees who still hear cases, one is a 73-year-old Democrat, and five are Republicans ages 67 to 78. Democratic retirements after 2016 could well be filled by a GOP president.
How much does any of this matter? A lot.
Although judges occasionally make decisions that might surprise the presidents who named them, those named by liberal and conservative presidents are often true to type on the hot-button issues that divide the judiciary as well as the nation. In 2010-11, for example, three federal judges named by Democrat Bill Clinton upheld the 2010 Affordable Care Act, while two named by Republicans Ronald Reagan and George W. Bush ruled it unconstitutional.
The 2006 book Are Judges Political?, an analysis of more than 19,000 votes by federal judges, concluded that "Republican appointees and Democratic appointees agree more often than they disagree." But the opposite is true "in ideologically contested cases, involving the most controversial issues of the day," the authors wrote. Overall, Democratic appointees took a liberal position 52 percent of the time, compared with 40 percent for GOP appointees.
Obama can point to the important addition of Srinivasan to that D.C. Appeals Court and the confirmation of two Supreme Court justices. Srinivasan is 46, Elena Kagan is 53, and Sonia Sotomayor is 59. Their ages pretty much guarantee they will be on the scene long after Obama leaves office. Still, that will be cold comfort to Obama—and a huge victory for conservatives—if he can't put his stamp on the federal bench by the time he steps down.
CORRECTION: An earlier version of this story misspelled Sri Srinivasan's name.
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