Column: Obama’s judicial philosophy

By David Freed

Harvard Political Review, Harvard U. via UWIRE

Presidential legacies are often tied to the famous legislation passed by the commander-in-chief. Lyndon Baines Johnson is inextricably tied to the Civil Rights Act, FDR to the New Deal package of federal stimulus, and Barack Obama tied his legacy early on to the Affordable Care Act. A president’s legacy, however, lives on not only in the halls of Congress but in courtrooms across America. Through judicial appointments to federal courts across the land, a president can influence law for decades to come. With one term gone, Obama’s judicial legacy is unfinished. Without a firmly declared judicial philosophy, the President has eschewed riskier tactics in favor of conventional ones that have tied up judicial appointments in bureaucracy and an oppositional Congress—continuing the trend of Democratic apathy towards judicial appointments as Republicans have made them a noted priority. To better understand Barack Obama’s court-related actions, however, let’s first take a more concrete look at former presidents’ judicial footprints.

Take Richard Nixon for example. Although he infamously left Washington with his reputation in tatters, his influence was seen on the Supreme Court for the next thirty years. Nixon’s four appointees—Warren Burger, Harry Blackmun, William Rehnquist, and Lewis Powell—included two consecutive chief justices (Burger and Rehnquist) and included the famous ruling in Roe v. Wade (where both Burger and Blackmun were in the assenting majority that women had a right to an abortion). Rehnquist’s longevity on the court arguably paved the way for the appointment of John Roberts – Rehnquist served through eight years of the Clinton administration and through George W. Bush’s first term before passing away, enabling a Republican president to nominate his successor.

In replacing Rehnquist and Sandra Day O’Connor with Samuel Alito and John Roberts, George W. Bush cemented his own judicial legacy by moving the Court farther to the right. He replaced a moderate who sided with liberals on key cases like Casey and Grutter with Alito, whose votes have been solidly in line with originalist thinkers Clarence Thomas and Antonin Scalia. The younger Bush famously uttered that he expected judges to “strictly apply the Constitution and laws, not legislate from the bench” and established a clear judicial theory for his administration. In addition to Alito and Roberts,  Bush appointed 62 judges to United States Circuit Courts of Appeals and 261 judges to United States district courts over the course of his presidency.

The Obama Administration’s position on the issue has been a stark departure from his predecessor. Historically, Republicans have been more active in appointing judges to the courts than Democrats, prioritizing it as a means of advancing their policy agenda. Through his first term, Obama had appointed two members to the Supreme Court (Sonia Sotamayor and Elena Kagan) but only 30 to circuit courts and 141 to district courts. By this time in their presidencies, Bush and Clinton had appointed 169 and 167 judges to circuit courts, respectively. Obama has pursued the common practice of allowing senators in states with vacant openings to nominate individuals before reviewing or nominating his own, something that Bush disregarded while in office. Also unlike Bush, Obama has waited for the American Bar Association to vet each nominee in advance of nomination to the Senate. Bush, who preferred to have his nominees approved by the independent Federalist Society—whose criteria were more aligned with Bush’s own legal philosophies—could often push nominees through the appointment process quicker and was very successful during his presidency in this regard.

As he heads into his second term in office, one of the more puzzling parts of Obama’s presidency has been his position on legal issues. Despite being a constitutional heavyweight in many regards—the President was the editor-in-chief of the Harvard Law Review in law school before going on to teach at the University of Chicago Law School—Obama has yet to issue a definitive judicial philosophy. Perhaps the most notable of his achievements is the diversity of his nominations. He is the first to nominate an openly gay black man (William Thomas) and nearly half of his nominees have been women, with 19 percent being African-American (versus 23 and seven percent, respectively, for Bush). He talks about ‘judicial empathy’ and the need for judges of all walks of life to be in the courthouse in order to consider the effect of their rulings on everyday citizens, yet the meaning of ‘judicial empathy’ is ill-defined and unclear. Senator Orrin Hatch derogatorily referred to Obama’s philosophies as a “code” for liberal activism.

As Jeffrey Toobin notes in The New Yorker, there are currently 74 open spots on the district and circuit courts and the Obama Administration has only submitted names for 32 of those. While there has been increased resistance to the nomination process, and according to the Federal Judicial Center, Obama’s confirmation percentage of 80% is lower than either of the previous two Presidents, it is also true that Obama’s unusual means of nomination has scuttled many a nominee. Obama was reluctant to nominate during the initial stages of his Presidency—during which he held majorities in both houses of Congress—because he wanted to keep the legislative focus on his crown jewel, the Affordable Care Act. Greg Craig, Obama’s legal counsel during that time, said, “We were looking for mainstream, noncontroversial candidates to nominate.” Obama’s nominations have similarly been on average four years older than Bush’s, limiting their influence on American legislation in positions where they hold lifetime terms. The American Bar Association has torpedoed the candidacy of 14 different candidates, further slowing the process.

Obama enters his second term without the security blanket in Congress with which he entered his first and any nominee to the Senate will be a source of contention. The polarization of the appointment process—especially to the Supreme Court—has led to constant filibusters over nominees and divisions on the Senate floor along party lines. ‘Borking’ a candidate – the name given to the process of dismissing a candidate because of extremist political or legal views – has become more and more common and even Harriet Miers, a Bush candidate for the vacancy later filled with the Alito, was dismissed by Republican leadership for not being firmly conservative enough.

The past two appointments to the Supreme Court faced a new source of opposition—the NRA. In ‘scoring’ the nomination, the organization made it extremely clear to senators that they would receive low marks on the NRA’s personal scoring sheet by voting for either Kagan or Sotamayor. This, despite Kagan never having voiced any opposition to gun control in her career as a litigator and as dean of Harvard Law School. After hunting for the first time with Antonin Scalia, Kagan commented that she found it “kind of fun.”

Kagan’s case is a good illustration of the faults inherent in the current nomination process and the polarization of what should be the appointment of independent legislative minds to the nation’s highest court. With Ruth Bader Ginsburg (age 79) likely to retire this term, and Anthony Kennedy and Antonin Scalia into their late 70s (both are 76), Obama may have the opportunity to make two or three nominees to the Supreme Court before this term is up. Names like Diane Wood, who was considered twice for the earlier appointments but both times dismissed from consideration, will return to the national spotlight. It is important that in the years to come that Obama clearly articulate his legal philosophy; it is key for the Democratic Party that he put a greater emphasis on the appointment of judicial nominees in his second term. With the eight years of Clinton and now a second term for Obama, Democrats can make it 16 of 24 years of presidential appointments to the legal system. With the current composition of the federal courts (before Clinton, 12 of the previous 16 years saw a Republican in the Oval Office), Obama’s selection of nominees will be key in shaping legislative policy for years to come. The current division of the Supreme Court—two four-justice liberal and conservative coalitions with Anthony Kennedy leaning to the right in the middle—could be changed drastically with the appointment of two or three young liberal justices, who would join the 52-year old Kagan and 58-year old Sotamayor for the next two or three decades. If the Affordable Care Act decision this summer reminded America of the power of the American judicial system, perhaps the beginning of the new term will cement a Democratic commitment to it.

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