Faced with the first president to ever participate in a Senate filibuster of judicial nominees, Republicans are bracing for a liberal tide that could radically alter the federal bench.
Some fear that Barack Obama, who, to the chagrin of liberals, has chosen moderates for his cabinet, will pay back his troubled left-wing base with left-wing judgeships.
“Judges will be an issue where Obama throws a lot of crumbs to his political base," Curt Levey, an attorney executive director of the conservative Committee for Justice, told The Washington Post. "People are worried. Obama has been unusually unabashed about believing in an activist role for judges."
What’s at stake? While the media and the public’s attention is often focused on Supreme Court vacancies, important rulings are issued, and precedent set, by the 179-judge federal circuit courts and the 678-judge U.S. District Courts. The circuit courts of appeals, which cover the nation's 13 federal judicial circuits, decide more than 30,000 cases a year. By comparison, the Supreme Court takes fewer than 100 new cases each year.
Not only is Obama backed by a strong majority in the Senate, which confirms all nominees, he will have the opportunity to fill a large number of vacancies in key federal districts. If that isn’t enough, Congress is poised to pass a bill that will actually increase the number of judges during the Obama administration.
Despite these ominous political headwinds, Republican senators and judicial activists still have not coalesced around a strategy. Will they filibuster on controversial nominees, or give way to the pressure to fill the large number of vacancies left over from the Bush administration?
"It appears he (Obama) is more committed to the appointment of activist judges than even President Clinton," said Sen. Jeff Sessions, R-Ala., a member of the Judiciary Committee. "One of the most troubling things of all was that he was in a distinct minority to vote against [Supreme Court Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr.]. That says a lot about his judicial philosophy, I'm afraid."
Senate Minority Whip Jon Kyl, R-Ariz., has been more blunt, promising to “lead a filibuster if the nominee is the kind of radical leftist who decides cases based on empathy rather than the Constitution or the law. And if that’s what he intends to do, then I’ll try to get my colleagues to join in that as well,” Kyle said in a speech to the Federalist Society in November.
Obama himself joined an unsuccessful filibuster against Alito in 2006 and was involved in numerous successful filibusters of circuit court nominees. He sided with 39 fellow Democrats, one Republican and one independent in opposing the Alito nomination. He was one of 22 Democrats to vote against confirming Judge Roberts in 2005.
The judicial math alone facing the Senate Republicans, who barely prevented the Democrats from achieving a 60-seat, filibuster-proof majority, is daunting. Consider:
Given the most typical patterns of the last three decades, Obama is likely to tip the appellate courts back to Democratic control. Republicans controlled 64 percent of appellate judgeships in 1993, but President Bill Clinton reduced that to 42 percent by 2001. Bush's appointees currently make up a 56 percent Republican majority of the total authorized judgeships, but historic retirement patterns suggest Obama will swing that back to Democrats by the end of his first term, according to a study by the Brookings Institution. A second Obama term with a Democratic Senate could send that as high as 75 percent, according to the Committee for Justice.
Sometime during the Obama administration, Congress is likely to pass a comprehensive bill to create 14 new appellate judgeships and 52 federal district judgeships to ease judges’ clogged case loads. If it’s passed soon, Obama and the Democrats would choose all of these nominees.
The Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion, has four vacancies. They’re especially important because the circuit, which covers Virginia, Maryland, West Virginia and the Carolinas, has issued some of the most important conservative decisions in recent years and hears national security cases involving terrorism and enemy combatants. “Conservatives thought of the 4th Circuit as Shangri-La, and it's very frustrating that it's on the verge of going to the other side," says Manuel Miranda, chairman of the conservative Third Branch Conference and a former top Republican Senate lawyer.
The New-York based 2nd Circuit, which hears important terrorism and business cases covering the nation's financial markets, is split 6-6 between Democratic and Republican nominees with one tie-breaking vacancy. It is poised to gain two more seats under the judgeship bill.
The first judicial nominees are not expected until next spring, when Obama likely will begin announcing his choices for the 12 vacancies on the U.S. Courts of Appeal. Republicans have suggested that, as a sign of bipartisanship, Obama should re-nominate some among the 10 named appellate nominees left in limbo from the Bush administration.
But that likely wouldn’t set well with liberals, who have already taken it on the chin with cabinet picks who tend to be centrists. For their part, many are excited at the prospect of judges who would reverse many key conservative decisions on cultural issues involving abortion and gay rights, along with civil rights, environmental law and capital punishment.
"He has an opportunity and a window to select judges who can restore balance on these circuits and extend protections to workers, women and people of color, constitutional protections, that the Bush judges have refused to do," said Nan Aron, president of the liberal Alliance for Justice.
But Republican Senate Minority Leader Mitch McConnell, bristles at the notion of activists issuing decisions based on “empathy.”
“We cannot countenance a process where nominees will be selected based upon whether they promise, or are presumed to favor, certain ‘sides’ in litigation,” McConnell, R-Ky. , said in a speech to the Federalist Society just after the election “This is antithetical to what ‘judging’ is. And it calls into serious question whether nominees who are chosen on these grounds will even be capable of living up to their solemn oath of administering justice without respect to persons.
“If President Obama’s top criterion in selecting nominees is empathy, then the burden will be on them to demonstrate that their political views do not trump their even-handed reading of the law,” McConnell added. “There is one side that judges should be on, and that’s the side of the law. This does not change in an Obama Administration.”
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