Analysis: Senate Deal Doesn’t Help Obama on Judges, and That’s What Matters Most

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 and the 60 votes needed to pave the way to confirmation. The Democrats’ threatened “nuclear option”—to change filibuster rules to speed nominees through the upper chamber with a simple majority—wasn’t going to apply to prospective judges. And neither does the deal senators struck that gives Obama his administration picks and preserves the filibuster.

That 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 Center on 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 over the long term tend to mirror the worldviews of the presidents who picked them.

But Obama might be the exception to the rule. 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, “the workhorses of our system,” 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 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.

There are 17 vacancies on U.S. Appeals Courts, also called Circuit Courts, and seven nominees are pending. There are 68 vacancies on U.S. District or trial courts, and 22 nominations pending. Numerically, Wheeler says, Obama is doing about the same as George W. Bush and Bill Clinton on confirmation of appellate judges.

Not so in the District Courts, Wheeler says. Obama’s district judge choices have waited much longer: an average 223 days from nomination to confirmation, up from 164 days during Bush's tenure to this point and 98 days during Clinton’s.

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 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. “We can only speculate,” Wheeler says, “but the difference leads you to believe there’s something going on here.”

While Obama’s overall numbers are in line with Bush and Clinton 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: It is often a springboard to the Supreme Court and its workload encompasses 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, Sree 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. Charles Grassley 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 Democrat age 73 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.

First of all, federal judges deal with virtually every issue of our times: from abortion, gay, gun, property, consumer, disability, women’s and civil rights; to capital punishment, civil liberties, and the regulation of workplaces, businesses, Wall Street, the environment, and campaign finance.

Second, there really is an ideological gulf between judges named by Democratic and Republican presidents, and it’s especially evident in rulings on provocative subjects. “Ideally, if the judges are all trying to look at the law in a neutral way, they will come to similar conclusions. But we know that’s not the case,” says Severino.

Headlines from time to time highlight judges making decisions that might have surprised the presidents who named them: the Ronald Reagan appointee who ruled that California’s gay-marriage ban was unconstitutional; the George W. Bush appointee who was the deciding vote in a 2-1 Appeals Court decision upholding the 2010 Affordable Care Act; and, as the marquee example, Chief Justice John Roberts serving as the deciding vote to uphold the health law when it reached the Supreme Court.

But on the hot-button issues that divide the judiciary as well as the nation, judges named by liberal and conservative presidents are truer to type. In 2010-11, for example, three federal judges named by Democrat Bill Clinton upheld the 2010 health law while two named by Republicans George W. Bush and Ronald Reagan ruled it unconstitutional. A 2006 analysis of more than 19,000 votes by federal judges in Are Judges Political? concluded, “Republican appointees and Democratic appointees agree more often than they disagree.” But it said that the opposite is true “in ideologically contested cases, involving the most controversial issues of the day.” Overall, Democratic appointees took a liberal position 52 percent of the time, compared with 40 percent for GOP appointees.

This year’s The Federalist Society: How Conservatives Took the Law Back From Liberals, by Michael Avery and Danielle McLaughlin, says, “Every single federal judge appointed by President George H.W. Bush or President George W. Bush was either a member or approved by members of the Federalist Society,” a group of conservative and libertarian lawyers formed in 1982 to counter the influence of “orthodox liberal ideology which advocates a centralized and uniform society.” Not surprisingly, a 2004 study of George W. Bush’s judicial appointees found that “they are among the most conservative on record.”

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 for years if not decades after Obama is term-limited out of office in January 2017. Still, that will be cold comfort—and a huge victory for conservatives—if Obama can’t put his stamp on the federal bench by the time he steps down.