New Zeal

06.09.14

Obama’s Shocking Success on Judgeships Overturns Conventional Wisdom

Quietly but persistently, Obama and the Democratic Party have won approval for federal judicial nominees at a rate that outdoes either of Obama’s predecessors.

Last month, the Senate confirmed Harvard law professor David Barron to be a federal judge on the United States Court of Appeals for the First Circuit by a contested vote of 53-45. The Barron nomination received plenty of attention because of Barron’s role in producing Justice Department memoranda defending the constitutionality of using drones to kill an American citizen affiliated with al Qaeda. What was lost in the coverage about the important drone issue, though, is something equally important: the Barron confirmation is the latest sign that after decades of lethargy, the Democratic Party has recently become much more passionate about—and much more successful at—getting their candidates confirmed to federal judgeships.

Federal appellate and district courts are enormously important in our legal system. More than 99 percent of federal cases are never decided by the Supreme Court and are resolved at the final stage by these other federal courts. The conventional wisdom in Washington is that these courts might be important, but Democratic presidents cannot get their nominees confirmed to these courts.

Since December 2012, when President Barack Obama started the nominations work of his second term, that narrative needs to be dramatically changed. In his first term, Obama had fewer than than four judges confirmed every month. Since December 2012, that rate approaches five judges a month, an increase of nearly 30 percent. During the similar period in his second term, President Bill Clinton saw a roughly 25 percent drop in the number of his nominees successfully confirmed.

Over the course of his entire presidency, Obama has succeeded in having more federal judges confirmed than did President George W. Bush, who put a lot of work into transforming the federal courts. When President Bush left office, ten of the 13 federal appellate courts had a majority of judges nominated by Republican presidents, two had an equal ratio of Republican and Democratic nominees, and one had a majority of judges nominated by Democratic presidents. Now, nine have a majority of judges nominated by Democratic presidents, while four have a majority of judges nominated by Republican presidents.

As I have written elsewhere, who these judges are can matter just as much—if not more—than how many of them there are. Obama’s record on nominating a diverse bench is historically unprecedented. Consider, for instance, that 42 percent of his nominees are women, compared to 22 percent for the second President Bush and 29 percent for President Clinton. Eight percent of his nominees are Asian-Americans and Pacific-Islanders, and the best any president could do before that was 1 percent.

Second presidential terms are about policies, but they are also about legacies.

Appointing younger judges also has important ramifications. Younger judges can exert their influence for decades, and can even be candidates for later Supreme Court vacancies. During his first term, particularly in his first few nominations, Obama almost exclusively nominated older judges. Since his re-election, the average age of his confirmed nominees has fallen by several years. Michelle Friedland, confirmed in April to the United States Court of Appeals for the Ninth Circuit in the Western United States, is currently the youngest federal appellate court judge on any court in the country.

Federal judges might all have one vote, but their influence can vary widely. Some of the best judges might write judicial opinions so compelling that other judges rely on them and all lawyers and law students feel like they should read them. Judges can exert influence by using their professional networks to hire the best law students as law clerks and then propel those law clerks to later professional success in the legal and political arenas.

The judges that Obama has had confirmed in the past 18 months can rival the quality of judges confirmed during any 18 month period in the recent past. Barron will be exceptionally important, which is another reason why Republican senators tried to block his confirmation. Friedland will be equally important. And several of Obama’s confirmed judges for the district courts, from Christopher Cooper in the District of Columbia to Jesse Furman and Allison Nathan in New York City, will also be superstars.

Just as important as the quantity and quality of the judges that Obama has had confirmed is what these confirmations represent: stakeholders in the Democratic Party who are willing to push aggressively to have their judges confirmed.

For decades, judicial confirmations were seen as a Republican issue. In the Supreme Court, Republicans lost many cases dear to their hearts in the last half of the 20th century, cases like Roe v. Wade. Their jurisprudential superstar, Robert Bork, was nominated to the Supreme Court in 1987 by President Ronald Reagan, and rejected by a Democratic Senate. The sting of losing in the courts mobilized Republicans to create an infrastructure that worked on judicial nominations (such as the Federalist Society). Because of all of this, every Republican candidate for president has to deliver impassioned speeches about the federal courts.

By contrast, with the comfort of many victories in the courts over many years, Democratic presidents have historically not cared as much about these issues. President Jimmy Carter and President Clinton left a minimal imprint on the federal courts, and after his first few years many thought the same would be true of Obama.

But the recent uptick in the quality and quantity of confirmed federal judges is just one indication that the Democratic Party might care more about judicial nominations more—and care more effectively—than it has in a long time. The president appeared last year with several of his nominees in the Rose Garden, a strong sign that the White House cared about judicial nominations. And in the Senate, following Republican efforts to block Obama nominees, Democrats led the effort to change the filibuster rule to ease the process of confirming Obama’s nominees—particularly judicial nominees.

The interest groups affiliated with the Democratic Party have also shown they can exercise some muscle when it comes to actual or potential nominees who do not satisfy them. For many years, frustrated Democrats highlighted the example of Harriet Miers—the second President Bush’s failed nominee to the Supreme Court—as an example of what they wish could happen on the political left, but never did. Bush withdrew the Miers nomination when it became clear that conservative interest groups and senators did not support her, even though a president of their party had nominated her. By contrast, it would have been hard to do that with a Supreme Court nominee offered by a Democratic president. Interest groups would have had a hard time convincing a Democratic White House to withdraw a nominee. But that could change. Currently interest groups on the left are strongly resisting a nominee for a federal district court seat in Georgia based on their opposition to positions the nominee held while serving the Georgia state legislature, and Senator Al Franken has announced he will vote against the nominee. Another potential Obama nominee in Pennsylvania was never put forward because of interest group opposition.

Second presidential terms are about policies, but they are also about legacies. The judges that Obama has had confirmed in the past 18 months will be a central part of his legacy, as will the new politics of judicial confirmations that these judges represent. We could be entering a brave new era, an era when both parties care passionately about who wears the robes on our federal courts.

David Fontana is an associate professor of law at George Washington University School of Law.