Who Controls the Senate Controls the Courts

As we approach Election Day, you might wonder why everyone is fussing so much over whether the Democrats or the Republicans will control the Senate for the next two years. After all, with the Democrats in control of the White House and the Republicans in control of the House of Representatives, why does it matter who controls the Senate?

Even if the Republicans control both the House and the Senate, they can’t enact any laws without the President’s approval, and even if the Democrats control both the Senate and the White House, they can’t enact any laws without the approval of the House. In short, no matter who wins the Senate, we have gridlock.

There is at least one respect in which control of the Senate is truly critical, though. This concerns judicial appointments.

Because a majority of senators can block a nomination, control of the Senate becomes critical. If the Democrats retain their majority, they can continue to confirm President Obama’s nominees. If the Republicans gain control of the Senate, however, they will be able to block his nominees—and there is little doubt that they will do so with a vengeance.

Most people pay attention to this only in regards the Supreme Court, but the lower courts are also critically important.

Since taking office, Obama has had approximately 280 federal judicial nominees confirmed. This represents roughly one-third of the federal judiciary. This has had a profound impact on our legal system in at least two very important respects.

First, Obama’s appointments have added substantial diversity to the federal bench. Forty-two percent of Obama’s judicial appointments have been women, as compared to only 22 percent of President George W. Bush’s nominees. Thirty-six percent of Obama’s judicial appointments have been minorities, as compared to only 18 percent of Bush’s judicial appointees.

Second, although Obama has generally been much less ideological in his judicial nominations than Bush, there is no doubt he has appointed much more liberal judges than his predecessor, and the addition of almost 280 Obama-appointed judges has had a dramatic effect on the overall ideological disposition of the federal judiciary.

Indeed, for the first time in more than a decade, judges appointed by Democratic presidents now substantially outnumber judges appointed by Republican presidents. These judges now hold a majority of seats of nine of the 13 United States Courts of Appeals. In 2008, Republican-appointed judges held a majority on 12 of the 13 Courts of Appeals. The shift is dramatic, and it is important.

Across a broad range of issues, such as the rights of persons accused of crime, abortion, the environment, immigration, affirmative action, gun control, religious liberty, campaign finance, women’s rights, the rights of corporations, and the right to vote, judges appointed by Democratic and Republican presidents tend to take very different positions.

Thus, who controls the Senate will determine the fate of as many as 90 federal judicial appointments that are likely to arise in the final two years of Obama’s presidency. If the Democrats control the Senate, the Republicans, no longer able to invoke the filibuster, will have only limited ability to block the President’s nominees. If the Republicans control the Senate, you can be sure that many fewer Obama nominees will be confirmed, and that those who do win confirmation will be much less progressive than the judges this White House has managed to appoint in its first six years. This will have a lasting and important impact on the federal judiciary for decades to come.

As President Ronald Reagan’s Attorney General Edwin Meese once observed, the nation must care deeply about a president’s federal judicial appointments, because they will shape the meaning of federal law for decades to come, “no matter what happens in future presidential elections.”

Does it matter who wins the Senate? You bet it does.