Obama’s Judicial Mistakes and how Biden Can Avoid Them
Donald Trump brags about the number of judges he has appointed, and once boasted about Barack Obama leaving him a “big, beautiful present” of over 100 judicial vacancies to fill. Setting aside Trump’s self-aggrandizement, the statistic he presented actually holds true: 105 federal judgeships were vacant when he assumed office, 88 district (trial) and 17 circuit (appellate) judgeships. The question of why, however, deserves a more thorough accounting than Trump’s self-serving logic. While Mitch McConnell’s obstruction certainly played a role, for a full picture we must also consider decisions that President Obama and other Democratic leaders made between 2009–2015, and the impacts of these choices.
2009 — Too Slow to Nominate
Obama’s associate White House Counsel, Ian Bassin, recently said:
Jeffrey Toobin, writing in The Oath, made the same observation, based on interviews with multiple key players. Toobin comments that Obama:
“thought it would be best to start with a single, uncontroversial choice to burnish his postpartisan credentials, show good faith to Senate Republicans, and expect similar fair dealing in return.”
Though Democrats had 60 senators in 2009, enough to overcome a filibuster, Obama wanted his first judicial nominee to be a judge who could get Republican support. Therefore, Obama selected David Hamilton, who had been a federal district judge in Indianapolis since 1994. Hamilton commanded respect across the political spectrum — though left of center, he was also heartily backed by Indiana’s Republican senator, Richard Lugar, and the president of the Indiana Federalist Society. Obama nominated him to the 7th Circuit Court of Appeals, believing Hamilton would have an easy confirmation and help restore bipartisan harmony to judicial selection. Republicans, however, blasted Hamilton, railing against two decisions he had made: one barring sectarian Christian prayer in the Indiana legislature and the other blocking a portion of an anti-abortion law. Obama made the nomination in March 2009, but Hamilton was not confirmed until November, with Lugar being the sole Republican to vote for his confirmation.
With no disrespect to Hamilton, who is a good judge and was a fine choice on the merits alone, the episode represents a microcosm of larger problems that plagued the Obama administration’s approach to judicial nominations. It is worth contrasting Obama’s approach with George W. Bush’s — when Bush made his first nominations, he made 11 in one fell swoop. Of these 11, nine were clear, committed, ideological conservatives. The two exceptions were Roger Gregory, recess-appointed to the 4th Circuit by Bill Clinton after Senate Republicans blocked him; and Barrington Parker Jr., whom Clinton had appointed a federal district judge and who now would be elevated to the 2nd Circuit. One of the nine conservatives was now-Chief Justice John Roberts, to the DC Circuit.
As Toobin notes, with these selections of nominees, Bush signaled that judges were important to him, and that he would appoint reliable ideological allies of the Republican Party. Bush did offer a concession to Democrats with the nomination of Gregory, the first black judge on the 4th Circuit, but the overall picture was clear. Furthermore, arguably, nominating many at once made confirmations easier — with so many targets, the opposition could not possibly take on all. Indeed, of the 9 conservatives nominated, 7 were ultimately confirmed as judges.
By contrast, Obama continued to make the same mistake he made with Hamilton — search for nominees who would get Republican support, even though it was not necessary for confirmation, and only nominate 1 or 2 at a time. By the end of his first year in office, Obama had made only 12 Circuit court nominations, fewer than half the number Bush had made. Similarly, he had made 21 district court nominations, compared to well over 30 for Bush. Obama did not place a high priority on judicial nominations, and it showed. By the end of his first two years, a 60–40 Democratic Senate had confirmed 16 Obama Circuit nominees and 44 district nominees. On the other hand, Bush had 17 Circuit and 83 district nominees approved in his first two years, even though Democrats controlled the Senate for most of that time.
A First Term of Missed Opportunities
By the end of Obama’s first term, a number of observers were commenting on his missed opportunities to reshape the federal courts. Robert Kuttner, writing in the American Prospect, pointed out that:
“During Obama’s first term, total judicial vacancies increased by 51 percent. During the first terms of Clinton and Bush, they declined by 65 and 34 percent respectively.”
Part of the problem could be traced to relentless opposition and obstruction by Senate Republicans; Kuttner notes that Obama’s confirmation rate for his nominations was 75%, far below Bush’s of 88%. Jeffrey Toobin notes that Clinton and Bush had 195 and 197 confirmations in their first terms, compared to just 154 for Obama — even though only Obama had an allied Senate majority for his entire first term. But, as Toobin also writes,
“The Senate cannot confirm judges who were never nominated in the first place.”
Indeed, at the time of publication of The Oath, Toobin observes, Obama had nominated candidates for fewer than half of the judgeships then vacant.
Toobin added, in The Oath, that in addition to being extremely slow to nominate judges, “it was hard to say what these Democratic judges stood for.” He critiqued Democrats in general, and Obama in particular, for not offering a coherent judicial philosophy to counteract the aggressive push by the Republican Party and the Federalist Society. Toobin has summed up the Republican judicial agenda thus:
“expand executive power, deregulate political campaigns, prohibit all forms of gun control, welcome religion into the public sphere, and reverse Roe v Wade.”
If anything, Toobin understates the case. The GOP agenda also includes what former Trump campaign manager Steve Bannon termed “deconstruction of the administrative state” and a revival of Gilded Age jurisprudence that prohibited any restrictions on the power of business executives/owners and that practically read the Commerce Clause out of the Constitution. Ending the minimum wage, Social Security, Medicare, restrictions on child labor, the EPA, and more — all on the table. And Republican judicial selections are carefully vetted by the Federalist Society for agreement with this agenda, which now also includes the reversal of Obergefell v Hodges and forcing LGBT people back into second-class citizenship.
(Note: “expand executive power” refers to the unitary executive theory, a popular concept on the right. The idea, which has scant basis in actual law, would destroy the independence of institutions like the Federal Reserve, allowing the president to appoint and remove political hacks at will, to try to manipulate the economy and reap political benefits. The unitary executive theory also grants the president virtually unlimited, unchecked power over the state’s national security functions. Under this view, not only does Donald Trump have the unquestionable right to send the Department of Homeland Security to Portland and “disappear” protestors, dictator-style, but it would be unconstitutional to stop him. This is the view favored by most Republican judges.)
Obama, and the Democrats more broadly, offered no competing philosophy, rarely even talking about judges and overwhelmingly trying to select people perceived as “noncontroversial.” Senator Elizabeth Warren, among others, critiqued the Obama administration for relying heavily on nominations from the corporate world. Kuttner, in his piece, commented that Obama actively avoided nominating liberal judges. Obama nominated one liberal, Goodwin Liu, to the 9th Circuit in 2010, but failed to make any real effort on his behalf. Liu’s nomination was not brought up for a vote until May 2011, when it was filibustered, with Lisa Murkowski being the sole Republican to back confirmation. Obama then withdrew Liu’s nomination, and resumed his pattern of sticking to centrist judges. (It wasn’t a total loss, though, as Liu was subsequently appointed to the California Supreme Court by then-Gov. Jerry Brown.)
The Filibuster Ends
By late 2013, the constant Republican filibusters and in particular, the blanket refusal to allow confirmation of any DC Circuit judges led Democrats to end the filibuster for nominations. This change allowed judicial nominees to be approved with a simple majority vote, rather than a 60-vote supermajority. After that procedural move, confirmations of Obama judges picked up speed considerably, starting with the three filibustered DC Circuit judges — Patricia Millett, Nina Pillard, and Robert Wilkins. Numbers do not lie — after getting 39 circuit judges approved prior to November 2013, the first 5 years of his presidency, Obama got 14 approved in year 6, between the end of the filibuster and the Democrats’ loss of the Senate in 2014. The district courts tell a similar story — 168 judges in years 1–5, 82 in year 6. Obama even named a liberal academic, Georgetown law professor Pamela Harris, to the 4th Circuit.
The Scapegoating of Harry Reid and the Memory-Holing of the 2005 Gang of 14
It has become popular among centrists of both parties to blame Harry Reid for Trump’s success in confirming judges, for a breakdown in Senate norms, or some variations on these themes. These arguments, however, are flawed. First, such critics assume that Mitch McConnell is a good-faith operator who wouldn’t have killed the filibuster himself, should doing so have been necessary to confirm Trump judges. That assumption goes against everything we know about McConnell and his actions. He cares about acquiring and holding power for the Republican Party, and has made it abundantly clear that confirming reliable Republican judges is his top priority. Rep. John Yarmuth (D-KY), who used to be a Republican himself and who has known McConnell for decades, gave an interview in which he stated that McConnell cares only about power, and will do whatever is necessary to attain it.
Furthermore, no real speculation is required — McConnell had already moved once to kill the filibuster. Back in 2005, when Democrats filibustered some of Bush’s controversial conservative judges, McConnell and other members of the GOP leadership maneuvered to end the filibuster to swiftly approve these judges. He ultimately did not make the change because Senate Democrats cut a deal that gave him nearly everything he wanted anyway. The “Gang of 14” deal guaranteed floor votes on three especially conservative and controversial nominees — Bill Pryor, Janice Rogers Brown, and Priscilla Owen — while promising that Democrats would filibuster only in “extraordinary circumstances.” That language left plenty of space for Republicans to define what was and wasn’t “extraordinary,” and hence allowed much space for the abolition of the filibuster later on — so it was not a good deal for Democrats.
Thus, there’s no reason to believe that McConnell would not have killed the filibuster had Harry Reid not done so. Harry Reid’s actions in 2013 got more Obama judges approved than would have been confirmed otherwise. And if Democrats are looking for a Democratic senator to blame for Trump’s success, Patrick Leahy bears far more responsibility. As chairman of the Judiciary Committee from 2009–15, Leahy adhered steadfastly to the blue slip tradition, which is an archaic Senate custom that says a judicial nominee may not be approved without approval (signified by a returned blue slip, hence the name) of both home-state senators. Leahy’s decision allowed any Republican senator to block any nominee from their state, and they relentlessly abused that rule — to the point where Obama eventually stopped nominating judges from states with a Republican senator. One case in point: Obama nominated Victoria Nourse to a 7th Circuit seat, but Wisconsin Republican Ron Johnson wouldn’t approve. So, her nomination was never processed, and the seat was left open for Trump to fill. He nominated the Federalist Society’s Michael Brennan. Tammy Baldwin, Wisconsin’s Democratic senator, refused to approve, but Republicans simply ignored the blue slip tradition and confirmed Brennan. This dynamic played out numerous times with numerous judgeships. Leahy religiously observed the blue-slip tradition, resulting in many more Donald Trump judges joining the bench than otherwise would have.
Obama’s Legacy
Obama’s legacy in terms of his judicial appointments is somewhat mixed. He appointed two excellent Supreme Court justices in Sonia Sotomayor and Elena Kagan, and overall he nominated the most diverse selection of judges any president ever has, in terms of how many women and racial minorities he chose. He also nominated the first openly LGBT judges, and also broke the conservative stranglehold on the DC Circuit and 4th Circuit Courts — often considered the second- and third-most important courts, given the multitude of federal government-related cases they oversee.
However, with a few exceptions like Sotomayor on the Supreme Court and Harris on the 4th Circuit, the judges did not articulate visions for the law and Constitution in the way Republican judges generally do. The American Constitution Society (ACS) has been working to be a liberal counterweight to the Federalist Society, but their clout is far less than that of the Federalist Society; members of the ACS do not routinely become judges.
Additionally, Obama’s judges tended to be older. A Brookings study shows that across Obama’s first term, the median age of his Circuit judges was over 57 years old — easily the oldest of any president for the past half-century. After the filibuster ended, this improved somewhat — but still, across all 55 of Obama’s Circuit appointments, the median age was nearly 53 years old.
Obama’s nominees were collectively the oldest of any president’s nominees in the last four decades. This will reduce the Obama legacy, since his judges will not serve as long as other presidents’ judges — in fact, 4 Obama Circuit judges have already retired/taken senior status and handed their seats to Donald Trump and the Federalist Society. (Senior status is a form of semi-retirement federal judges can take after reaching age 65 and serving long enough, where they can continue to hear cases if they choose to, but do not have to.)
The long-lasting Trump legacy
Donald Trump’s approach has been very different from Obama’s, and if there’s one instance where Trump’s braggadocio holds some truth, it’s his record on the judiciary. Trump has appointed nearly as many Circuit judges in one term (53) as Obama in two terms (55), and now fully 30% of active Circuit judges have been appointed by Donald Trump. Further, Trump’s nominees are young — per the Brookings study, his Circuit judges have a median age of 48, the youngest of any recent president — so they will be serving for a long time. Decades after Trump is gone, it is highly likely that reliable Republicans like Justin Walker, 38, and Neomi Rao, 47, both of the DC Circuit, will still be deciding cases and making policy. (The last remaining federal judge appointed by LBJ, Jack Weinstein, stopped hearing cases in February 2020 — 51 years after LBJ left office.) Additionally, Trump has appointed a total of 216 judges (217 after Amy Coney Barrett is probably confirmed), second only to Jimmy Carter for total in a single term. And Carter’s total is only that high because the judiciary was expanded during his term, creating many new judgeships for him to appoint.
Furthermore, not only will Trump’s judges serve longer than Obama’s, they will also have more substantial impact on law and policy. Obama’s judges have largely maintained the status quo — they’re “conservative” in a classical sense, not the modern Republican sense. Politically left-of-center, Obama’s judges largely do not spend much time articulating a progressive vision for the Constitution and law — certainly not in the way that judges like Clarence Thomas articulate a conservative, reactionary vision that desires to return America to the 19th century. (As Toobin, Millhiser, and others have noted, Clarence Thomas was never Antonin Scalia’s lackey. Thomas is more radical, more extreme, than Scalia ever was. Scalia once said “I am an originalist. But I am not a nut,” regarding the differences between himself and Thomas.)
Trump’s judges are another matter altogether. They were chosen, by and large, specifically because of their devotion to advancing the Republican agenda through judicial decrees. And judges like Walker, Rao, James Ho, and Amy Coney Barrett have delivered for the right wing. Nearly one-quarter of Trump’s judges are former Clarence Thomas clerks. Thomas is the Court’s most outspoken, radical, right-wing member, and his and Trump’s retrogressive vision will be shaping American law for generations to come, thanks to these judges.
The Future — What Could Joe Biden do?
Should Joe Biden be elected, he will have a substantial challenge to dilute the impact of Trump’s judges and build a legacy of his own. To do so, he will need to avoid missteps that Obama made — most importantly, Biden cannot expect cooperation from the Republican Party, and should nominate judges without regard to what Republicans will say. (This assumes the election of a Democratic Senate, a necessary condition for Biden to build a judicial legacy — McConnell has shown he will block Biden judges if at all possible.) They have shown that they are only interested in power and cannot be bargained with when it comes to the judiciary. Under Obama, they delayed and obstructed even uncontroversial nominees, while they have confirmed aggressive partisan judges at breakneck speed under Trump — even ill-qualified ones like Justin Walker and Lawrence VanDyke. Biden’s best approach would be to accept that he will only get a handful of GOP votes, at most, and nominate judges without regard to Republican support.
Additionally, Biden should nominate judges who are younger; this will allow for a longer-lasting impact. Case in point: Obama nominated Thomas Vanaskie, then 56, to the 3rd Circuit in 2009, and he was confirmed months later — but Vanaskie took senior status upon reaching 65, giving Trump another seat to fill. (Vanaskie retired outright a couple months later.) Trump appointed Peter Phipps, now 47. Phipps will likely serve for a couple decades on the 3rd Circuit, and has been mentioned as a future Republican Supreme Court nominee.
In terms of ideology — as a liberal, I would prefer to see Biden nominate liberal judges, but in any case, I would recommend he nominate judges with a clear, articulated vision for the Constitution and law, to effectively counteract the Republican ideology.
On Expanding the Courts
Senator Brian Schatz of Hawaii has argued:
Schatz has an excellent point. Republicans have been ruthless when it comes to using the power they are given, and it works. If nothing changes, they will have a 6–3 Supreme Court majority for generations to come, a majority that will, in all likelihood, declare that Republican policies are constitutionally mandated, and greenlight vote suppression that prevents Democrats from winning elections. In fact, we don’t even have to use conjecture: Republicans have already successfully enacted much of their agenda via judicial decree. As Eric Levitz wrote recently in NY Magazine,
“The existence of a counter-majoritarian policy-making entity — that is broadly perceived as being above politics and which can advance conservative goals by declaring them constitutionally necessary (as opposed to having to persuade the public of their substantive merit) — is immensely valuable to the GOP. And this is all the more true now that Trump has packed the judiciary with Federalist Society 40-somethings. With a mere five conservative Supreme Court justices, Republicans have managed to ban limitations on corporate political spending, gut the Voting Rights Act, pare back Medicaid expansion, restrict the capacity of consumers and workers to sue corporations that abuse them, and stamp out school-desegregation efforts, among other things. Almost all these measures would have been too unpopular to enact through the (semi-) democratic branches of the U.S. government. And yet, the Roberts Court has not only assembled a record of conservative policy-making more far-reaching than Donald Trump’s — it has also managed to do so while retaining the approval of 56 percent of Democrats in Gallup’s most recent poll.”
And now, given the impending confirmation of Amy Coney Barrett, they are poised to go even further. They just accepted a case that will enable them to kill off what’s left of the Voting Rights Act — a law that, as Ian Millhiser points out in the article, John Roberts has reviled and wanted to destroy for his entire career. They also are about to hear a case to overturn the Affordable Care Act on specious grounds; even though the legal arguments are absurd, Republican judges on the lower courts have accepted them and ruled to strike down the ACA. Especially with Barrett on the Court, there is a very good chance the ACA will be killed. That just scratches the surface of what they will and could do — including stealing the 2020 election for Donald Trump, which, as Slate’s Mark Joseph Stern noted, three justices just signaled they will do, and Trump has been very clear that he wants Barrett confirmed because she will help him steal the election. Given these stakes, and the “procedural violence” that Schatz alludes to, doing nothing would amount to unilateral disarmament/surrender. The choice is stark — expand the courts and appoint new, pro-democracy judges, or submit to Trump allies ruling by decree for decades and generations to come. Larry Sabato, of the UVA Crystal Ball for nonpartisan political analysis, expressed a similar view recently:
Additionally, expanding the size of the courts is not a new idea — it’s been done many times before, and not just with the Supreme Court. The reason why Jimmy Carter holds the record for most judges appointed in a single term is that the courts were dramatically expanded in size under his presidency. That is why the 9th Circuit has maintained a liberal reputation for so long — Carter appointed 15 judges to the 9th Circuit, and they were largely solid liberals. And the bulk of them were succeeded by Clinton or Obama judges, maintaining a Democratic majority on the 9th Circuit even through Reagan, the Bushes, and now Trump.
Furthermore, as the Prospect piece notes, there are nonpartisan reasons as well in favor of court expansion. Increases in population size have led to an increase in court cases, and adding more judges would improve the efficiency of the court system. The last new circuit judgeship was added in 1990. There are many more reasons, which I’ll expand upon in a separate piece. Should Joe Biden be elected with a Democratic Senate and House, he should seize the chance to expand and reshape the federal judiciary. Electoral majorities come and go, but judges serve for life, and are usually a president’s longest-lasting legacy.
Final Thoughts
Barack Obama appointed many impressive judges, Sonia Sotomayor and Elena Kagan first and foremost. He appointed the most diverse cohort of judges any president ever has. Case in point: the 4th Circuit. Obama appointed 7 judges to that court: 1 white man, 2 black men, 1 Hispanic man, 3 white women. He did, however, miss opportunities to reshape the courts when it comes to progressive interpretations of law, choosing to mostly appoint “noncontroversial,” centrist choices who ended up getting stalled and blocked anyway. Worse, the path of bipartisan accommodation that Obama and other leading Democrats like Leahy pursued left a slew of vacant judgeships for Trump to fill — and fill them he has, with young, Federalist Society-approved hacks who will have decades to enact the oligarchic, illiberal Republican agenda by judicial decree.
Nonetheless, odds are that both Trump and the GOP Senate majority will be ousted in November. Should this happen, Joe Biden and Democrats generally will need to be ready. It is imperative that they move quickly, expand the judiciary, and appoint a slew of pro-democracy judges who can articulate a progressive vision for the Constitution and law. Republican judges have a well-established track record of mandating the implementation of Republican policy and rigging electoral rules in favor of Republicans. Democratic diffidence and timidity on the judiciary has had terrible consequences, and a Biden presidency coupled with a Democratic Senate and House in 2021 will be perhaps the last chance to do something about it before it is too late.
Dave Wasserman, hardly a liberal partisan, recently made this observation:
Wasserman is absolutely right. This fact alone underscores the need for major changes in the judicial system. And in 2021, Joe Biden could lead the way in making these changes. Avoid prior mistakes of worrying about bipartisanship and norms that the GOP destroyed some time ago, vigorously pursue a pro-democracy agenda, and appoint judges and justices who will actually dispense justice. The opportunity is there, the climate is ripe, for Biden to take his place among the nation’s greatest, most transformative presidents. Let’s get this done.
