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December 17, 2009

"Going Robe: Obama's judicial appointment strategy isn't working; Here's a better one"

The title of this post is the title of this piece by Prof. David Fontana at The New Republic.  Here are excerpts:

Obama's federal appellate nominees have been generally moderate, safe choices.  A majority of them have served as prosecutors (usually considered evidence that a judge might lean more to the right than liberals would want)....  Yet besides Hamilton, only two of the twelve nominees ... have so far been confirmed....

The lesson here for Obama is simple: If Republicans are going to obstruct even moderate nominees, and if Senate Democrats are sometimes going to have to break filibusters to stop them, then why keep appointing generally moderate judges meant to appeal to Republicans?  Why not try to put your own philosophical stamp on the courts?

The politics of placing liberals on the bench aren't nearly as daunting as the administration seems to think. Democrats have enough votes to break a filibuster, as they ultimately did for Hamilton -- and, unlike with health care reform, centrists like Joe Lieberman and Ben Nelson don't seem to be wavering on judicial nominations.  Beyond the 60 senators in the Democratic caucus, there appear to be some Republicans who will vote to end a filibuster on principle, even if they won't vote for the nominee.  (The Hamilton filibuster was broken by 70 senators, including some Republicans who did not subsequently vote to confirm.)

More importantly, outside the Senate, Obama would have public opinion on his side. Research conducted recently by Stephen Ansolabehere of MIT and Nathaniel Persily and Jamal Greene of Columbia Law School found that 58 percent of Americans thought it very or somewhat important for the Supreme Court to exhibit "empathy" in judging.  A majority also supported interpreting the Constitution according to "current realities" rather than according to the "original intentions" of the Framers.  These findings are largely consistent with a series of polls conducted by Quinnipiac University over the years.

The public, in other words, would be perfectly content to watch Obama put his stamp on the judiciary.  If only he weren't so fixated on wooing Republican senators who seem determined not to be wooed.

As regular readers know, I think these issues are of particular importance for federal crime and justice jurisprudence.  At least for balance, one might hope to see at least a few prominent lawyers from the defense bar get appointments to the circuits go along with all the former prosecutors now becoming Obama judges.

December 17, 2009 at 05:04 PM | Permalink


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I entirely agree with both your post and the thrust of the quoted article: Obama should be bolder with his judicial nominees.

But I don’t think Obama believes that the politics of putting liberals on the bench are “daunting.” I think he can do the math, and realizes that his nominees could be considerably more liberal, yet still confirmable. Rather, I think he genuinely wants to find common ground with the Republicans. At some point, he may realize it’s hopeless. Perhaps that point has arrived.

Posted by: Marc Shepherd | Dec 17, 2009 5:22:15 PM

"Rather, I think he genuinely wants to find common ground with the Republicans."

Common ground = judicial filibuster is constitutional

Hamilton had the full-throated (floor speech) support of Dick Lugar (R-IN) yet 29 Rs still filibustered. Can you find me a single one of Bush's nominees that were filibustered while having the support of a home state Dem senator? The Rs just lowered the bar for when the Ds can filibuster come 2013 or 2017 or whenever. That is the biggest long term prize.

On related note, where are the 9th and DC nominees (two vacancies each)? Please don't tell me Boxer and Feinstein's nominees are being shot down by the WH as too liberal ...

Posted by: . | Dec 17, 2009 6:06:47 PM

Marc Shepherd --

"I think he genuinely wants to find common ground with the Republicans."

Perhaps, but it's not a high priority. On the other hand, somewhere in the back of his mind he knows he'll need it for his surge in Afghanistan, since half the Dem caucus is ready to slit his throat about it.

"At some point, he may realize it’s hopeless. Perhaps that point has arrived."

And not a moment too soon, since it's going to leave in about 11 months. Dodd and Specter will be among those departing, and I wouldn't bet the ranch that Harry Reid will be back either. You heard it here first.

On the broader front: Have we forgotten that Obama campaigned as a moderate? A "post-partisan?" The ironic thing about the article is its tacit assumption that the campaign stance was a fraud. When it talks about Obama's "stamp" on the courts, what it means are some real, honest-to-goodness Nancy Gertner and Stephen Reinhart clones, not these namby-pamby liberal-but-not-radical types we've mostly seen so far.

I once asked a Democratic, but cynical and brutally honest, friend of mine why the Left sticks with Obama when he puts up the moderate front. I was stunned, but awakened, by the answer: "Because they know he's lying."

Posted by: Bill Otis | Dec 17, 2009 6:53:18 PM

Bill. I don't agree with your friend. I think they left *wants* to believe he is lying. But I think Marc is right; he's not. I have consistently and repeatedly said that Obama is *genuinely* more conservative than people think. I correctly predicted his behavior on a whole host of issues. What I said before and I say it again. Obama has very liberal ends but he uses very conservative means to get there. People confuse that all the time. They hear the glowing words and then project their own rush to the fire onto him. That's not Obama and never will be; he's the tortoise not the hare.

Posted by: Daniel | Dec 17, 2009 9:48:42 PM


If you want to go back to 1/26/09. I said I did not think Obama would pardon anyone in 2009. While the year is not over, so far I have been correct.

Posted by: Daniel | Dec 17, 2009 10:00:30 PM

"Why not try to put your own philosophical stamp on the courts?"

He is.

Posted by: George | Dec 18, 2009 1:49:26 AM

I agree with the priority comment, and it's not just Obama, it's not a high priority item for the Senate either. I suppose the Democratic leadership may just be saving it for next year hoping that confirming federal judges is a safe election year activity, especially if those judges are seen as fairly moderate.

As for lowering the filibuster bar it wouldn't especially concern me if we simply reached a political climate where it were impossible to get any judge through the confirmation process. That would hopefully be a big enough signal flare that something is wrong with how we conduct government that something might actually happen.

Posted by: Soronel Haetir | Dec 18, 2009 12:08:15 PM

this is a great lesson for Obama the Republicans are going to preclude even moderate candidates, and whether Senate Democrats will sometimes have to break filibusters to stop them, then why keep appointing moderate judges in general intention to appeal

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