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September 5, 2012

Should Prez Obama become much more aggressive on judicial appointments if he gets a second term? How exactly?

The question in the title of this post is prompted by this commentary from Professor Pam Karlan in the Boston Review, which carries the headline "Empty Benches." Here are excerpts:

Recent Republican administrations have pursued a judicial nomination strategy that seeks to appoint young, deeply committed conservative lawyers to the federal district courts and courts of appeals.  Republican activists pressed judicial nominations as a priority, and conservative presidents and senators worked hard to get these nominees confirmed.  The result is not just a deep farm team of potential Supreme Court nominees, but also a host of conservative judges inscribing their views of constitutional law and their interpretations of statutes in thousands of cases that never reach the Supreme Court.  If their cases are appealed to the top, then those judges’ opinions shape the terms of the debate in the high court.

By contrast, the Obama administration has done relatively little to bring the courts back into balance.  When Obama was sworn into office, there were 55 vacancies on the federal bench.  There are now more than 75, and Obama will likely “become the first president since Reagan, and possibly much earlier, to finish his first term with more vacancies than he inherited,” according to Alliance for Justice. (Vacancies weren’t tracked before the Reagan years.)

To be sure, much of the problem is conservative obstructionism.  Several of the president’s most prominent nominees have been filibustered.  Many others have been victims of “blue slips”—an internal Senate procedure that allows either senator from a nominee’s home state essentially to block a nomination. Even candidates who ultimately are confirmed by overwhelming votes have faced a series of procedural roadblocks. And the prospect of having to put their careers on hold has probably dissuaded many qualified candidates even from seeking nominations.

But conservative obstruction is not the only problem.  During the period when Democrats held a filibuster-proof senate, the administration moved far too slowly to make nominations.  Granted, it was a busy time, with the economic crisis, two Supreme Court openings, and health care reform occupying the administration’s attention.  But the delay also reflects a sense that judicial appointments are less important than other policy levers and that the president’s base does not really care about the issue.

Moreover, while the current administration has achieved an admirable degree of gender and racial diversity among its picks (nominating roughly two times more women and persons of color, by percentage, than the preceding administration had), its court of appeals nominees are generally older than their conservative counterparts.  And very few of them have backgrounds either as public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought.

The administration’s inability to fill vacant seats on the federal bench has both immediate and long-term effects.  Right now, more than half of Americans live in jurisdictions facing what the Administrative Office of the U.S. Courts calls “judicial emergencies”: their empty benches can’t handle heavy caseloads. Because criminal prosecutions take priority, plaintiffs with civil claims — workers, victims of government misconduct, consumers, and others — face severe delays in vindicating their rights.

In the longer term, vacancies accrued during a liberal-leaning administration that remain open for succeeding conservative administrations to fill will ensure that courts continue to skew to the right, meaning that progressive legislation and regulations will be undercut when it comes time to enforce them.  The lack of a vigorous judicial response to conservative versions of originalism and “strict construction” — which often means little more than a cramped reading of broadly worded statutes and constitutional provisions — will bias popular discussion and debate.

Professor Karlan's answer to the questions in the title of this post seem clear:  via this commentary, she is essentially urging an Obama Administration to make a concentrated effort to "appoint young, deeply committed" liberal lawyers with a background as "public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought." (Notably, Karlan's own professional background fits her description, but at age 53 I wonder if she even considers her "generally older" than her own view of the ideal Obama nominee.)

I share Professor Karlan's view that President Obama and others in his administration probably ought to give more attention and emphasis to judicial nominees, especially given the large number of judicial emergencies that can negatively impact the administration of justice in so many ways.  That said, I am more inclined to praise the Obama team's efforts to date, particularly for its ability to bring much greater gender and racial diversity to the federal bench.  (My chief disappointment on this front has been Obama's apparent eagerness to elevate persons who are already judges rather than often seeking to bring in bold new perspectives into the judiciary.)

I wonder if readers have thoughts on this front (which, of course, impacts sentencing law, policy and practice in many ways).  In particular, I wonder if anyone would urge the Obama Administration to start gearing up for a massive post-election judicial appointment push soon if Obama is elected to a second term.  I do not know if any re-elected president has ever put forward a huge bunch of judicial nominations in the early days of a second term (or even in the closing period of his first term when a lame duck senate could perhaps be prodded into some confirmation activity).   But it wold be quite an impressive spectacle if the Obama Administration could put up candidates for every open judgeship not  long after the election.  (The same might be said, for that matter, about a possible Romney Administration.)

September 5, 2012 at 12:44 PM | Permalink


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Doesn't your viewpoint depend on whose ox is getting gored?
Do we need more Jeff Sutton-types?
Or do we need more William O. Douglas-types?

Posted by: ? | Sep 5, 2012 8:38:12 PM

Missing in all this hullabaloo is the fact that judicial posts should ideally be apolitical, not "balanced." More specifically, justices should be seated on how effectively they interpret the US Constitution, not the degree of creative interpretation based upon their political bent. While one cannot live in a vacuum, a judge's professional acumen and conscious decision-making actions should not be affected by political positions or, worse, personal feelings.

Posted by: Eric Knight | Sep 5, 2012 8:52:57 PM


From the judge I'd agree. However, as a President nominating someone for a judgeship does the "rightness" of the interpretation not end up flowing from your politics? Do you think Obama or a democrat believes that Scalia "effectively interprets the Constitution"?

Simply put, a prospective judge in this political climate is getting elected based on their judicial interpretations conforming with a particular political platform. That is not to say the judge is interpreting the constitution to fit their political views. Just that their judicial interpretation, which may be purely apolitical from their point, has to line up with a parties view. Otherwise they won't get nominated, much less confirmed.

Posted by: Matt | Sep 5, 2012 10:18:47 PM

You don't think Obama is EXACTLY aware of what he is doing? He was editor of the Harvard Law Review, for goodness sake.

Who benefits from judicial emergencies? Answer that question, and you will understand why Obama deliberately did what he has done, which has been to drag his feet on federal judicial nominations more than any President in US history.

Do you think Obama gives a flying _____ whether there's a balance of conservative and liberal judges in the district courts? If they could have their way, his cronies and contributors would prefer that the federal district courts did not exist in the first place.

After all, Obama's concept of "due process" in ordering the assassination of an American citizen (and his 16-year-old son) was to meet with a committee of spies and generals in the White House.

(This message is being written by someone who voted for Obama in 2008, by the way.)

Posted by: Noel | Sep 6, 2012 1:16:08 AM

How do we usually select who to kill in armed conflicts after Congress (Ron Paul included) authorizes the c-i-c use force against certain forces, including when the people targeted are U.S. citizens? And, how is authorized killings of this sort (I guess we can assume the conclusion) "assassinations" exactly? I say this as someone who finds the approach cited here horrible as a policy.

How did Obama "drag his feet more" than any other President? Doesn't this require to take into consideration the size of the problem faced, including the breadth of obstruction? I'm not -- don't worry Rs! -- going to claim both sides don't do it. But, the efforts have been recent in origin. You just can't compare the situation to let's say when Taft was President or anything. On that measure, Obama very well might be going slow, but hey, he also had help. As with the above, sure, let's just focus on one side w/o context!

Obama repeatedly has chosen middle of the road picks who repeated have received support from all sides. He is concerned not just with ideology (though like all Presidents, that is a factor, as it always will be until we pick judges a different way) but the chance of the person getting thru and things like diversity. This results in liberal and moderate judges who will at times vote in a conservative fashion. After all, even someone deemed a big leftie like Breyer repeatedly voted that way on various issues (e.g., support of funding of religious schools, drug testing for innocent students, etc.).

If the Republicans truly made an agreement with Obama, there might even be a few more conservatives, like Sotomayor was agreed upon by Bush I as part of an agreement open at the time. This would be a reasonable way to do things, but then the best approach would be to settle the rules before the election, the same way that filibuster reform should work. Anyway, yes, the second term would be a good time to push more to fill slots. And, per Karlan, the Dems had a filibuster majority only for a short time -- not realistically enough to do much judge-wise, even normal process there taking a long time.

Posted by: Joe | Sep 6, 2012 10:44:39 AM


I sadly agree with your analysis. As someone with more Libertarian tenets than most, neither party is ideal in my own view, though one party has far more significant creative interpretation, the Democratic party, through analysis of all SCOTUS cases for the past 20 years.

To that end, until we become completely non-socialist (conservative /Libartarian hybrid), we will not see justices approach that of original intent, and if we veer the other way and become completely socialist, then the Constitution as written is null and void anyway.

Posted by: Eric Knight | Sep 6, 2012 5:19:24 PM

"Should Prez Obama become much more aggressive on judicial appointments if he gets a second term?"

Think of Alfie Doolittle from My Fair Lady. With a little bit of luck we won't find out.

Posted by: Kent Scheidegger | Sep 6, 2012 6:52:14 PM

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