Republicans have a decent shot at taking control of the Senate in November, so President Obama could have as little as nine months left to shape the judiciary he will leave behind.
Senate Democrats positioned themselves to help with that endeavor when they eliminated the filibuster for most judicial nominees last November. But Republicans are still finding ways to slow things down.
When Senate Republicans lost their ability to filibuster judicial nominees, many claimed the federal bench would change forever. Lindsey Graham of South Carolina predicted the White House would start naming ideological, left-leaning candidates to these lifetime appointments, just because it could.
“The political nature of who you pick changes because you’re not going to have to accommodate anybody on the other side, so I think you’ll see over time, the flavor of the judiciary change,” Graham said.
But in the four months since, observers say that the Republican nightmare isn’t exactly panning out. In fact, seven nominees have gotten confirmed this year without a single “no” vote from a Republican.
“Well, that tells you something. It tells you that, if they’re getting confirmed by those numbers, these are not what I would describe as problematic nominations,” said Michael Gerhardt, who teaches constitutional law at the University of North Carolina.
He says if you look at the nominees coming down the pipeline, you’ll notice a trend: mostly moderate, centrist picks.
“Typically, President Obama’s nominees are people that have what we’ll call mixed records. And I don’t mean anything critical by that — mixed by the sense that they aren’t being ideological. They’re deciding cases based on the facts, and they therefore tend to go one way or the other depending on those facts,” he said.
Gerhardt says one reason the president may not be pushing overtly ideological candidates is that he is facing reality. Even without the filibuster, Republicans can still gum things up through what’s called the blue slip system — senators can block judicial nominees from their home states. In fact, in a compromise with Georgia’s two Republican senators, the White House is pushing a district court nominee many Democrats are slamming as too conservative.
Russ Wheeler of the Brookings Institution says there’s another reason the president hasn’t been making conspicuous ideological choices.
“I think he’s less convinced than other people are that the route to social change lies principally through the judiciary — that instead, lasting social change must rely on legislative change,” Wheeler said.
It’s still early — and the White House may end up naming less moderate candidates in the months to come. But in the meantime, the profile of the judiciary has already changed under Obama. When he took office, 60 percent of the active judges on the appeals courts were Republican appointees. Now, that balance is 48 percent Republican and 52 percent Democratic. And Wheeler says if you look at the diversity of the bench, there’s no question — Obama is shattering records.
“If present trends continue, he will have appointed more African-Americans than any other president, more Hispanics than any other president, more women than any other president and many more Asian-Americans,” he said.
Add to that professional diversity. Nan Aron of Alliance for Justice, a liberal advocacy group, says Obama is putting different kinds of lawyers on the federal bench.
“I’m pleased to see that he’s looking to put on the bench more public defenders, criminal justice lawyers, civil rights lawyers, public interest lawyers,” Aron said.
But the clock is ticking down. There are currently 86 judicial vacancies. Even if Democrats retain control of the Senate, Carl Tobias of the University of Richmond Law School says there’s no way Obama has the time to fill all the slots.
“You have to have the recommendations from the senators. It takes three months to go through the White House and then you have to go to committee, have a hearing, have a committee vote, and a floor vote,” Tobias said.
And Senate Republicans say they have no intention of speeding things up.