The Obama judicial revolution that wasn't

Obama’s legacy is largely written because second presidential terms are usually disappointing. But in assessing his legacy, one needs to look at how successful Obama has been in remaking the federal courts with his appointees. By that score he has squandered an Obama judicial revolution.

Second term presidents including Obama, confront declining political capital. Obama is already a lame duck, facing a hostile Republican Congress and a Senate lacking a filibuster-proof Democratic majority. A president’s party generally lose seats in the second term midterm elections and in 2014 Democrats will have to defend 20 seats compared to 13 for Republicans. Obama’s agenda is packed with guns, immigration, global warming, and fiscal and economic issues. The president has too much too do, too little time, and too little support.

One area where presidents have a chance to leave a mark beyond their term is with their judges. With appointments to the bench, federal judges that include district and appellate courts and justices to the Supreme Court, can influence the fate of a president’s agenda decades after he leaves office. The federal courts have become a powerful third branch of the federal government, called upon to determine the constitutionality of many issues, and resolve controversies ranging from who will be elected president in 2000 to the fate of Obamacare.

Franklin Roosevelt’s New Deal was held up by a hostile Supreme Court and it was not until after he attempted to pack it in 1937 that the president got his way and many of his reforms were upheld. Eisenhower, in reflecting on his presidency, conceded that he made two mistakes, Earl Warren and William Brennan, and they were both sitting on the Supreme Court. Court appointments matter. There is significant evidence that federal judicial appointments generally decide consistent with the philosophies of the presidents who appointment them. Warren and Brennan notwithstanding, surprises are the exception to the rule.

President Clinton filled 370 judgeships during his presidency, including two Supreme Court Justices, 62 for the Court of Appeals and 306 at the district Court level. By the time he left office in 2000 nearly 44% of the judges were Clinton appointees. George Bush was almost as successful, with 2 Supreme Court, 59 Court of Appeals, and 261 district court appointments. His 322 appointments constituted 37% of federal judges.

Obama’s judicial record so far is weak. Unlike Ronald Reagan and his staff who took office with a clear plan to locate and fill judicial appointments quickly, Obama was slow in grasping the importance of judicial selection. This was especially odd being a former law professor. He was often criticized for being slow in nominating judges, even when the Senate had a filibuster-proof majority. After the 2010 elections judicial confirmation slowed to a trickle as Republicans held up confirmations in hopes of retaking the White House in 2012.

As of the start of Obama’s second term he has placed 173 judges on the federal bench–approximately 20% of the total. That includes two Supreme Court Justices, 30 for the court of appeals, and 141 district court judges. Few are real liberals. There are currently 32 vacancies at the court of appeals and district court levels. Obama is unlikely to achieve the numbers that Clinton had, let alone Bush, even if he fills the current vacancies and those anticipated. He will fined it increasingly more difficult to secure Senate confirmation of his nominees even if the Democrats hold the chamber, and if Republicans take over in 2014, expect little or no action on them in the last two years of his term. Obama has perhaps 18 months left to make his mark on the federal courts, and the crowded agenda his second inaugural speech pronounced suggests that judicial nominations are not high on his list.

Yes Obama has replaced Justices Souter and Stevens with Sotomayor and Kagan, but that has not shifted the balance of the Supreme Court. Obama may get a chance to replace one or two more Justices in his second term, but it is not clear that the conservatives on the bench will be leaving. He may replace Ginsburg and perhaps Breyer. Do not expect Scalia or Thomas to step down in the next four years. If Kennedy, a swing vote on many issues, steps down, that may be Obama’s best chance to alter the Court’s direction. But no guarantee here.

Obama has squandered a chance to remake the federal courts. One need only look to the recent decision striking down his recess appointments as proof of that. The three judges were appointed by Reagan , George W. Bush, and George H.W. Bush. Obama’s major pyrrhic victory on the Supreme Court, upholding Obamacare, came courtesy of Bush appointee Chief Justice Roberts in a 5-4 vote that also drew future limits to the use of the Commerce clause to sustain federal laws. This June Reagan appointee Justice Kennedy, a Reagan appointee, will probably lead a 5-4 majority striking down some bans on same-sex marriage. But in terms of Obama redoing the federal courts, he has underperformed on perhaps his most important task.

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    David Schultz's picture
    David Schultz

    David Schultz is a professor in the School of Business at Hamline University.