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July 22, 2009

Should President Obama practice ageism when making judicial nominations?

Thanks to How Appealing, I noticed this recent essay at The New Republic, headlined "Old World: Why isn't Obama appointing young judges to the circuit courts?". Here are snippets:

Attention was understandably focused on Sonia Sotomayor this week, as her confirmation hearings unfolded. But what about Obama's other judicial nominees?  The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake....

And so Obama's first five circuit-court nominations raise serious concerns.  Their average age of 55 (they are 51, 52, 54, 58, and 60) is considerably higher than the average age of nominees under recent past presidents.  According to regional circuit-court data compiled from the Federal Judicial Center, Reagan's nominees were, on average, 50 years old; George H.W. Bush's averaged 49; and George W. Bush's averaged 50.  Even Clinton's nominees were under 52 on average.

Moreover, roughly a quarter of the circuit-court nominees put forward by the past three Republican presidents — and 15 percent of those chosen by Clinton — were below the age of 45.  Reagan nominated some of the brightest young legal minds in the country, including Alex Kozinski (then 34), Frank Easterbrook (36), Kenneth Starr (37), J. Harvie Wilkinson (39), Doug Ginsburg (40), and Richard Posner (42).  The first President Bush nominated Michael Luttig (36), Samuel Alito (39), and Clarence Thomas (41).  And George W. Bush continued this practice, nominating Neil Gorsuch (38), Brett Kavanaugh (41), Raymond Kethledge (41), Jeffrey Sutton (42), and William Pryor (42), among others.  Although we realize Obama is early in his presidency, so far noneof his circuit court nominees are in their 40s, let alone their 30s.

I suspect that President Obama's first few circuit nominees are skewing older because he wanted to make "safe" early selections.  Indeed, I am most troubled by how "safe" (and slow) Obama's circuit appointees have been so far.  All five are current district judges and many have a history as federal prosecutors.  In my view, the federal circuit bench really needs a jolt through appointees who will bring bold and fresh perspectives to federal jurisprudence, whether those perspectives are within older or younger bodies. 

Some related old and new posts on judicial appointments:

July 22, 2009 at 10:56 AM | Permalink


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I agree with you, Doug. On top of that, there are quite a few open judgeships to which Obama has not yet made any nomination. And he definitely should be looking for more judges in their 40s.

Posted by: Marc Shepherd | Jul 22, 2009 11:19:48 AM

Talent certainly doesn't seem to be an Obama priority. Sotomayor doesn't seem to have the brains of an average federal appeals court judge, let alone a member of the Supreme Court.

Posted by: federalist | Jul 22, 2009 2:50:11 PM

Oh, come on, Federalist. It is possible to respect someone’s intellect while disagreeing with them.

Posted by: Marc Shepherd | Jul 22, 2009 6:05:06 PM

Please, explain, then Marc, how the "wise Latina" could come to the conclusion that Ginsburg's opinion would have affirmed the Second Circuit in Ricci.

Here's what she said:

I don't believe that's how I read the dissent. It may have to speak for itself, but I—Justice Ginsburg took the position that the 2nd Circuit's panel opinion should be affirmed; and she took it by saying that no matter how you looked at this case, it should be affirmed. And so I don't believe that that was my conclusion reading the dissent, but obviously it will speak for itself."

What possible reading of Ginsburg's dissent in Ricci is that that it took the position that the Second Circuit should have been affirmed?

Posted by: federalist | Jul 22, 2009 7:01:47 PM

I agree that age should be a criterion, and, to assure maximum breadth of experience and a far-sighted outlook, I think all his appointees should be at least 70.

Posted by: Bill Otis | Jul 22, 2009 8:06:06 PM

Who would have thought Mr. Change We Can Believe In would be playing it safe, particularly when faced with opportunities to dilute Republican courts packed tightly with "movement judges"?

Never mind progressives, are any of his lower-court nominees even Democrats?

Posted by: John K | Jul 23, 2009 3:43:11 PM

Prior Presidents chose younger nominees in part to enhance their ability to have a longer-term impact on the direction of the federal courts. While I would expect Obama to do the same, why should he be criticized for not doing that (yet)?

And, if you disregard that, there's the possibility that the 50somethings that Obama's appointing now are the same people who were bright 40somethings, but couldn't get appointed in the last 8 years because they weren't bright Republican 40somethings.

Posted by: Anon | Jul 24, 2009 11:02:11 AM

Oliver Wendall Holmes was 62 when he went on the Supreme Court and served another 30. The best justice on the Court now is Stephnes and he is 89 or 90. My favorite was Marshall in his elder years. I am a darn snot smarter as I age and I would not have to do wind sprints to write opinions. We need a Democratic President for two terms and then another one for two terms. Then if we get a Republican, we need an Ike to appoint an Earl Warren.

Posted by: mpb | Aug 8, 2009 12:36:25 PM

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