August 10, 2016
Eager for practitioner views (and others) on how the "Obama judiciary" may be transforming sentencing jurisprudence and practice
The request for comments, particularly from federal court practitioners, appearing in the title of this post is prompted by this recent Politico article headlined "Did Obama win the judicial wars? Liberals say he shied away from too many battles and ran into GOP roadblocks. But the result is still a transformation of U.S. courts." Here is one excerpt from the article highlighting its themes:
It’s not yet clear whether Obama’s judicial legacy will include a Justice Garland, who could swing the direction of the highest court for decades. But even if the Garland nomination stalls, Obama has already reshaped the judiciary, not only the Supreme Court but the lower courts that hear more than 400,000 federal cases every year. And the unprecedented move by Senate Republicans to deny Garland a hearing is just the most intense skirmish in a larger battle over Obama’s nominees, a battle that has transformed the politics of the judiciary in ways that will reverberate long after his presidency.
Ultimately, most of those battles over judges have really been about Obama, a nasty front in the larger partisan war that has raged throughout his presidency. And as with most of the foreign and domestic policy battles of the Obama era, the result, after a lot of bellicose rhetoric and political brinksmanship, has been a lot of change. Obama has already appointed 329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction. He got two left-leaning women onto the Court: Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general. He also flipped the partisan balance of the nation’s 13 courts of appeals; when he took office, only one had a majority of Democratic appointees, and now nine do. Just last week, two Obama appointees to the Fourth Circuit Court of Appeals struck down some of North Carolina’s strict new election law, calling it a discriminatory effort to stop blacks from voting.
Obama is a political pragmatist and a public advocate of judicial restraint, so he hasn’t nominated the dream judges of the left. But he certainly hasn’t appointed the kind of Federalist Society conservatives that George W. Bush favored, so liberal activists — who have indeed put aside their misgivings and supported Garland — have mostly approved of his impact on the justice system. His appointees have already taken the progressive side in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving his own health reforms and carbon regulations. And they really are diverse; 43 percent of Obama’s judges have been women, shattering the old record of 29 percent under Bill Clinton, and 36 percent have been non-white, surpassing Clinton’s record of 24 percent. Obama has appointed 11 openly gay judges, when before him there was only one.
I have a lot of thoughts about a lot of aspects of Prez Obama's likely judicial legacy, but I am disinclined to discuss this legacy at length until we find out in the coming months if Merrick Garland becomes the next Justice. In the meantime, though, I would be eager to hear views from criminal justice practitioners who spend any time in the federal courts as to how big a different the 327 judges Obama has appointed to lower courts have impacted sentencing jurisprudence and practice. As the Politico article details, the federal judiciary looks a lot different thanks to the diversity of Prez Obama's appointment, and I am now eager to hear from informed persons whether it also feels a lot different when it comes to sentencing decision-making.
August 10, 2016 at 11:15 AM | Permalink