Democrats control the White House and have the largest congressional majorities enjoyed by a chief executive in decades. But President Barack Obama isn't off to a brisk pace when it comes to putting his imprint on the third branch of government — the federal courts — and some of his allies are disappointed, particularly with the prospect of a slimmed-down Senate majority after the midterm elections.
At the highest level, the Supreme Court, Obama is already having a major impact. His first nominee, Sonia Sotomayor, was confirmed to the high court last year and his second, Elena Kagan, seems well on her way to confirmation. Obama's predecessor, George W. Bush, did not get his second (and final) justice until 2006, six years into his presidency.
But the vast majority of federal cases never reach the high court; they are decided by appeals court judges, making appointments to that level crucial to determining a president's judicial legacy.
The Senate has confirmed nine of Obama’s 21 appeals court nominees. That compares with eight out of 30 appeals court nominees confirmed for Bush at the same point in his first term as president.
But unlike Bush, Obama was elected with a majority of the popular vote and works with a Senate in which his party has 59 senators — at least for now.
“You’d expect President Obama, elected with a comfortable margin and with the number of Democratic senators there now are, to have had a lot more judges confirmed by now,” said Russell Wheeler, former deputy director of the Federal Judicial Center, the research agency for the federal courts. Wheeler is a fellow at the Brookings Institution.
Eleven prominent liberal law professors complained to Obama in an open letter in February that “your Administration must act with far more energy and dispatch in the vitally important task of nominating and confirming federal judges.”
The president has nominated seven appeals court judges since then, leaving six appeals court vacancies for which he has yet to nominate replacements.
And Obama has not sent the Senate any nominees for the two vacancies on the D.C. circuit court, often seen as the most powerful appeals court. One vacancy dates to 2005, the other to 2008.
While a president controls the nominations, he cannot dictate the pace of confirmation. A determined Republican minority and a Senate preoccupied with other items have stymied quick action on some nominees.
Seven appeals court nominees have won Judiciary Committee approval but await a floor vote. Sixth Circuit appeals court nominee Jane Stranch has had the longest wait: she won approval by the committee last November but hasn’t gotten a floor vote.
Obama's appeals court appointees who were nominated before February of this year waited an average of 208 days for confirmation, according to Wheeler. Bush's appeals court appointees who were nominated by the same point in his first term waited an average of 180 days for confirmation.
Some of the delay may be due to the time consumed by senators and staff preparing for the Sotomayor and Kagan confirmation hearings, Wheeler said.
An excuse for delay?
But Nan Aron, president of the Alliance for Justice, a liberal advocacy group that supports Obama’s nominees, argues, “There is absolutely no reason for the pace of judicial nominations to slow down just because there has been a nomination to the Supreme Court.”
Aron, a leader in the battle over judicial nominees since the Reagan era, said she hoped the Kagan nomination “is not used as an excuse” to further delay action on Obama’s nominees, “particularly given the realities of election-year politics and the summer recess, which will chew up most of August and half of September.”
Republicans have forced two cloture votes so far on Obama's appeals court nominees. With 60 votes needed to get cloture (ending debate on a nominee and setting up a confirmation vote), and with 59 Democratic senators, the potential for a chancy cloture vote may be delaying action on other nominees.
As with the rest of his agenda, Obama’s success in reshaping the judiciary hinges on how many Senate seats the Democrats win and hold in November.
Obama's appeals courts picks won’t get the attention that Sotomayor and Kagan get, but they will be a significant part of his legacy long after he leaves the White House.
Why do appeals court judges matter? Because most appeals end with them.
In the 12 months ending Sept. 30, 2009, the federal courts of appeal decided more than 30,000 cases on the merits and terminated another 60,000 for procedural reasons.
Contrast those numbers with the Supreme Court. In the current term, which is scheduled to end next week, the justices will issue fewer than 100 opinions.
Reagan judges still on the bench
Life tenure for judges means that Ronald Reagan, for instance, is still making his influence felt on the bench.
His presidency ended 20 years ago, but 21 of Reagan’s appeals court judges are still on active duty on the bench, deciding issues ranging from the status of detainees in Afghanistan to whether greenhouse gas emissions made Hurricane Katrina more destructive than it would have been otherwise.
Obama hasn't been faced with a confirmation fight comparable to the epic battles of the Bush presidency, when Senate Democrats repeatedly used filibusters to block votes on conservative favorites Miguel Estrada, William Pryor, Janice Rogers Brown, Priscilla Owen, and others.
Eventually, in 2005, the Democrats relented on Pryor, Brown and Owen as part of a bipartisan accord to avert a change in Senate filibuster rules. But they were able to keep Estrada — seen as a rising star and a potential future Supreme Court nominee — off the bench.
The most high-profile fight for Obama so far has come over Goodwin Liu, nominated to a spot on the Court of Appeals for the 9th Circuit, which covers nine western states.
Liu, a professor at the UC Berkeley School of Law, said in 2004 that certain Supreme Court precedents, such as the 1995 decision Adarand v. Pena, which limited the use of racial preferences in federal contracting, should be “swept into the dustbin of history.”
To some degree, Republicans are giving Liu what might be called “confirmation payback”: in 2006, he testified against the nomination of Samuel Alito to the Supreme Court, arguing that “Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse.”
Liu told senators last month that he regretted that 2006 testimony because it was “unduly harsh” and “hurtful to the nominee.” But the battle over Liu appears to be an exception.
“I expect about five more circuit court confirmations this year,” said Curt Levey, executive director of The Committee for Justice, a conservative advocacy group that opposed Sotomayor and opposes Kagan. “I doubt Goodwin Liu will be one of them, because his confirmation this summer would be an unwelcome distraction for Kagan and his confirmation this fall would be an unwelcome election issue.”
Key court with two vacancies
Obama's lack of action is notable for the vacancies on the D.C. circuit. Six of the nine active judges currently on the circuit were appointed by Republican presidents.
That court gets the most attention because it deals with detainee cases and other high-profile controversies — and it’s the court where nine Supreme Court nominees, including four of the current justices, have served.
“Because of the importance of the D.C. Circuit and its unique national visibility, it’s not surprising that the administration is taking great care with these appointments,” Aron said. “We know they’re working hard to fill them and hope that nominations can happen soon.”
Being an appointee of a president doesn’t ensure that a judge will hand down decisions favoring his administration, but presidents do tend to choose those who share their ideology. And Obama is shifting the balance on some of the appeals courts.
To cite one example, according to Wheeler, Obama’s appointments have changed the 4th Circuit, which covers Virginia, Maryland, West Virginia, and the Carolinas, from five Republican appointees, five Democratic, and five vacancies, to seven Democratic appointees, five Republican and three vacancies.
The actuarial tables will help Obama. For example, Reagan’s remaining active appeals court judges have an average age of 68, so it’s likely that in the next few years most of them will retire or take senior status (a reduced caseload after a judge reaches age 65, and when his age and years of service total 80). That would allow Obama to replace them.