When he taught constitutional law, Barack Obama was known to listen to students as much as lecture them. Now, like all new presidents, he must soon fill vacancies on the courts. His picks will shape interpretations of the Constitution for decades. How much will he listen to others in making these critical selections?
Mr. Obama does not yet have a Supreme Court appointment to make, but he must soon fill at least 16 empty slots in the federal courts of appeal. This second tier of judicial review carries more influence these days as more Americans file lawsuits and the high court takes fewer cases. Appeals court rulings – more than 60,000 a year – often become the law of the land.
Obama's nominees for the 13 federal judicial circuit courts will be a fresh test of his call for a new bipartisanship and a hint at his Supreme Court nominees. His first test – sprinkling his cabinet with a few Republicans – went pretty well. A second big test, a bipartisan stimulus package, faltered.
Now, depending on the always-shifting partisan split in the Senate, the president could either slide liberal nominees through easily or try to find impartial candidates who can rise above either camp's interests with a commitment to true impartiality from the bench.
Obama's record as a senator does not indicate he has a listening heart on judicial selections. He was not one of the bipartisan "Gang of 14" senators who, in 2005, brokered a compromise to avoid filibusters for votes on President Bush's court nominees. He has also made clear that he wants courts to use the Constitution for social policy. Judges, he said, must have "the heart, the empathy ... to understand what it's like to be poor, or African-American, or gay, or disabled, or old."
While such empathy is necessary for presidents or legislators, it runs counter to the judicial oath. Judges must "administer justice without respect to persons, and do equal right to the poor and to the rich." And a Rasmussen poll last month found that nearly two-thirds of Americans say court rulings should be based on what is written in the Constitution. Only 35 percent believe Obama agrees with them on that.
As both liberals and conservatives seek to change society through the courts, the selection of judges has become politicized, eroding their mandate for impartiality. Both sides want to rip off the blindfold on the statue of Lady Justice and tip the judicial scales in their favor. "The level of anger directed toward judges today exceeds that of the past," wrote former justice Sandra Day O'Connor recently.
One way to lessen that anger is to allow a bipartisan panel of citizens to have a say in picking nominees. By tradition, a president's nominee for a court in a particular state can often be blocked by either senator from that state. To get around that and to select impartial judges, senators in eight states have used panels of citizens to propose or screen nominees. The process isn't always perfect, especially if the panels are stacked with trial lawyers.
Will the president follow suit and display a similar empathy for judicial impartiality?