Obama’s strate­gic choices change course of courts

Mi­nori­ties, Democrats fill benches af­ter eight years of ap­point­ments

The Washington Times Daily - - FRONT PAGE - BY DAVE BOYER

Pres­i­dent Obama has re­shaped the fed­eral courts for decades to come with a record num­ber of women and mi­nori­ties ap­pointed to life­time judge­ships, de­spite los­ing his high-pro­file bat­tle over the U.S. Supreme Court this year.

Of the more than 340 judges nom­i­nated by Mr. Obama and con­firmed by the Se­nate, about 42 per­cent are women, 19 per­cent are black and 11 per­cent are His­panic — more fe­male and mi­nor­ity ap­pointees than any other pres­i­dent. Mr. Obama also has ap­pointed at least 11 fed­eral judges who are openly gay, an­other record.

Along the way, the pres­i­dent has turned nine of the 13 key fed­eral ap­peals courts into ma­jor­ity-Demo­crat courts. When he came into of­fice in 2009, only one of the cir­cuit courts was ma­jor­ity Demo­crat.

“That’s a huge im­pact,” said Car­rie Sev­erino, chief coun­sel and pol­icy di­rec­tor at the Ju­di­cial Cri­sis Net­work, a con­ser­va­tive le­gal group. “Typ­i­cally, we see over eight years that a pres­i­dent will have a chance to re­place a third of fed­eral judges, and that was just what Obama did. And he was very strate­gic in how he did that.”

Although Se­nate Repub­li­cans blocked Mr. Obama’s nom­i­na­tion of Judge Mer­rick Gar­land to re­place the late Jus­tice An­tonin Scalia on the Supreme Court, the cir­cuit courts han­dle much larger caseloads over­all. Mr. Obama’s im­pact is al­ready clear.

The 4th U.S. Cir­cuit Court of Ap­peals, based in Rich­mond, Vir­ginia, pre­vi­ously was known as one of the most con­ser­va­tive ap­peals courts in the na­tion. Demo­cratic ap­pointees now out­num­ber Repub­li­cans by a 2-1 mar­gin.

That cir­cuit court struck down North Carolina’s voter ID law in July in a

unan­i­mous rul­ing by a three-judge panel con­sist­ing of Judges Diana Grib­bon Motz, who was nom­i­nated by Pres­i­dent Clin­ton; Henry Floyd, nom­i­nated to the fed­eral bench by Pres­i­dent Ge­orge W. Bush and el­e­vated to the 4th Cir­cuit by Mr. Obama; and James A. Wynn Jr., an­other Obama ap­pointee.

The same court last spring also ruled in fa­vor of a trans­gen­der stu­dent seek­ing to use high school bath­room fa­cil­i­ties match­ing the stu­dent’s gen­der iden­tity rather than bi­o­log­i­cal gen­der. Two of the judges were ap­pointed by Mr. Obama, and the third was ap­pointed by Pres­i­dent Ge­orge H.W. Bush.

The U.S. Cir­cuit Court of Ap­peals for the Dis­trict of Columbia, where Mr. Obama has placed four nom­i­nees, is con­sid­ered the most im­por­tant of all the cir­cuit courts, with a heavy dose of cases in­volv­ing fed­eral reg­u­la­tions and sep­a­ra­tion of pow­ers.

“His picks were un­de­ni­ably very lib­eral, very friendly to his ap­proach to­ward the ad­min­is­tra­tive state, par­tic­u­larly in an ad­min­is­tra­tion that was try­ing to find ways of do­ing busi­ness that didn’t in­volve hav­ing to get the ap­proval of the elected branch,” Ms. Sev­erino said. “He used the ad­min­is­tra­tive state very ag­gres­sively, and I think that was why the D.C. Cir­cuit was such a big pri­or­ity for him.”

Mr. Obama’s judges on the 11-mem­ber ap­pel­late court are Sri Srinivasan, Pa­tri­cia Ann Mil­lett, Nina Pil­lard and Robert L. Wilkins. The lat­est three were con­firmed in rapid suc­ces­sion by sim­ple ma­jor­ity votes af­ter Se­nate Democrats used the “nu­clear op­tion” in Novem­ber 2013 to elim­i­nate the rule re­quir­ing a su­per­ma­jor­ity of 60 votes for most ju­di­cial con­fir­ma­tions.

Univer­sity of Rich­mond law school pro­fes­sor Carl To­bias said Mr. Obama’s in­flu­ence on the D.C. Cir­cuit Court will be “one of the most im­por­tant lega­cies he has.” Judge Pil­lard, at age 55, is the old­est of the four Obama ap­pointees on that court.

“That’s the sec­ond most im­por­tant court in the coun­try,” Mr. To­bias said. “The cases it gets are so crit­i­cal, reg­u­la­tory cases with huge stakes for in­dus­try and for peo­ple. Also, it’s a spring­board for the Supreme Court.”

On the high court, the two jus­tices ap­pointed by Mr. Obama — So­nia So­tomayor and Elena Ka­gan — have been re­li­able votes for the lib­eral bloc.

Hans von Spakovsky, a for­mer Bush ad­min­is­tra­tion of­fi­cial who is an an­a­lyst at the Her­itage Foun­da­tion’s Ed­win Meese III Cen­ter for Le­gal and Ju­di­cial Stud­ies, said the pres­i­dent “has ap­pointed some of the most lib­eral, ide­o­log­i­cal and rad­i­cal judges to ever sit on the fed­eral bench.”

“Obama has al­ready left his mark on the fed­eral ju­di­ciary. In­deed, in his eight years in of­fice, he has changed its char­ac­ter — and not in a good way,” Mr. von Spakovsky said in a blog post.

‘All-time his­toric record’

The “his­toric” di­ver­si­fi­ca­tion of the fed­eral bench also has forged a ju­di­ciary that will be more sen­si­tive to is­sues of gen­der and racial bias, said Shel­don Gold­man, a po­lit­i­cal sci­ence pro­fes­sor at the Univer­sity of Mas­sachusetts-Amherst who has tracked ju­di­cial nom­i­na­tions for nearly 40 years.

“Di­ver­sity mat­ters,” Mr. Gold­man said. “Judges re­flect who they are. You can’t sep­a­rate out the judge from his or her life­time of ex­pe­ri­ences.”

Mr. Obama’s ju­di­cial nom­i­nees have been con­firmed at a pace com­pa­ra­ble to pre­vi­ous two-term pres­i­dents, although con­fir­ma­tions have slowed dra­mat­i­cally since Repub­li­cans re­gained con­trol of the Se­nate in early 2015. The Se­nate con­firmed 80.9 per­cent of Mr. Obama’s cir­cuit court nom­i­nees, com­pared with 62.9 per­cent for Ge­orge W. Bush’s ap­pointees and 71.9 per­cent for the nom­i­nees of Bill Clin­ton.

On the lower dis­trict courts, the Se­nate con­firmed 82.7 per­cent of Mr. Obama’s ap­pointees, com­pared with 92.3 per­cent for Mr. Bush and 87.2 per­cent for Mr. Clin­ton.

But the Repub­li­can-led Se­nate in the 114th Congress has con­firmed only two Obama nom­i­nees to cir­cuit courts in two years — none this year — and only 18 dis­trict court judges.

Since the Carter ad­min­is­tra­tion in the late 1970s, Mr. Gold­man has rated the ju­di­cial con­fir­ma­tion process with his In­dex of Ob­struc­tion and De­lay, which takes into ac­count the num­ber of nom­i­nees con­firmed and the length of time they waited for a vote.

The 114th Congress has rated a 1.00, or to­tal ob­struc­tion and de­lay, for Mr. Obama’s cir­cuit court nom­i­nees. None was con­firmed within a 180-day wait­ing pe­riod, and only two were con­firmed over­all.

“That’s an all-time his­toric record,” Mr. Gold­man said. “This is a per­pet­u­a­tion for over 20 years of a re­ally vi­cious cy­cle, where Repub­li­cans, then Democrats, then Repub­li­cans up the ante for ob­struc­tion and de­lay. That’s just not healthy for the ju­di­ciary.”

In the 111th Congress, when Democrats held the ma­jor­ity in the Se­nate, the in­dex for Mr. Obama’s nom­i­nees was 0.50.

Repub­li­cans of­ten point out that Mr. Obama, as a sen­a­tor, tried to fil­i­buster Sa­muel An­thony Al­ito for the Supreme Court in 2005. An­a­lysts say Mr. Obama’s rate of get­ting judges con­firmed would have been lower if Se­nate Demo­cratic leader Harry Reid of Ne­vada hadn’t used the “nu­clear op­tion.” Eleven judges have been con­firmed with fewer than 60 votes since late 2013.

With Se­nate Repub­li­cans stalling on Mr. Obama’s nom­i­nees in the 114th Congress, ju­di­cial vacancies have risen to 105, pro­vid­ing Pres­i­den­t­elect Don­ald Trump with an op­por­tu­nity to make his mark quickly on the ju­di­ciary. In ad­di­tion to the Supreme Court va­cancy, 13 seats are open in the cir­cuit courts.

With Democrats hav­ing re­moved the fil­i­buster as a weapon against nom­i­na­tions below the level of the Supreme Court and Repub­li­cans hold­ing a ma­jor­ity 52 seats in the Se­nate, Mr. Trump should get rel­a­tively fast ac­tion on judges.

“Harry Reid de­cided to nuke the fil­i­buster, which I think Democrats are sorry about now,” Ms. Sev­erino said. “Now it’s com­ing back to bite him. I was glad to see it go, as much as it was frus­trat­ing to see the D.C. Cir­cuit re­ally be so ide­o­log­i­cally tipped in the process.”

Mr. Reid has said he doesn’t re­gret the move. Without the fil­i­buster, Democrats will ei­ther “need to pick up some Repub­li­cans” to de­feat a nom­i­nee or re­sort to the prac­tice known as the “blue slip,” Mr. To­bias said.

Se­na­tors can ob­ject to a nom­i­nee from their home state in writ­ing on a piece of pa­per. Then the chair­man of the Se­nate Ju­di­ciary Com­mit­tee, cur­rently Chuck Grass­ley, Iowa Demo­crat, de­cides whether or not to honor that ob­jec­tion.

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