To leave a liberal legacy in the courts, Obama must imitate the GOP
President Obama should copy the Republican strategy on judges: Go young.
The successful Republican filibuster of Goodwin Liu to sit on the US Court of Appeals represents the most high-profile defeat of a judicial nomination since President Obama took office. While the GOP’s obstructionism further demonstrates the hopeless logjam over the courts, Liu’s fate – he withdrew his nomination today – also highlights Mr. Obama’s own flawed approach to nominations.Skip to next paragraph
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In few areas should President Obama’s record be more dispiriting to liberals than in the judiciary, as Obama has nominated, with few exceptions like Liu, a string of older jurists, undermining Democratic efforts to provide balance to a federal court system now dominated by conservatives, and failing to set the groundwork for a lasting legacy.
That Senate Republicans have blocked many of the president’s nominees since 2009 is a surprise to no one who follows the process. To be fair, Democrats filibustered a handful of President Bush’s nominees for political reasons, but Republicans have gone much further. Scores of mostly uncontroversial nominees have languished, many ultimately easily confirmed after months of delay, illustrating the cynicism of the GOP’s behavior.
A former law professor, the president was expected to be engaged in court issues more than any of his modern predecessors. Instead, Obama has given no speeches and made virtually no comments on the judicial crisis. This stands in stark contrast to President Bush, who made it one of his signature issues.
While it is foolish to believe that Obama could fix Republican opposition with a handful of speeches, his highlighting of the issue would at least bring wider coverage to the judiciary and build more grassroots pressure among Democrats.
Furthermore, Obama has made far fewer nominations than Bush by mid-2003, but this isn’t necessarily because of a lack of interest; rather, Bush had scores of extra open judgeships to fill upon entering office after Senate Republicans had completely blocked dozens of Democratic nominees in the last few years of Bill Clinton’s presidency. Obama did not have the same luxury of vacancies in 2009. (Though, currently, there are 86 openings on the district and circuit courts, a ten percent vacancy rate.)
Still, the president’s lack of aggressiveness is ill-conceived, as evidenced by whom Obama has been nominating to the all-important US courts of appeal.
Tale of the tape
As of mid-May, Obama had made 30 nominations to the circuit courts. Of those, just seven were age 50 or younger, and the average age of all his nominees was 54. By way of comparison, Bush had made 43 nominations to the appeals courts at a similar point in his presidency. And 21 of them were 50 or underleading to an average age of just 50 overall.