Lost in the gathering debate over President Barack Obama’s next Supreme Court pick, a profound shift in the federal judiciary is taking place below the high court.
Working methodically, and drawing sporadic fire from left and right, Obama is gradually reshaping the U.S. courts.
Already, he’s tipped the balance of two appellate circuits to Democratic-appointed majorities, with a third about to flip. He also is choosing a larger proportion of women and minorities for lifetime federal judgeships than other presidents.
The diversity of his nominees is “striking. He’s clearly, I think, eclipsed everyone, and so early in the administration,” said Carl Tobias, a University of Richmond law professor who follows federal court issues.
A leading example of Obama’s judicial makeover: the appeals court that serves Maryland, which is influential in national security matters.
Half of its judges were Republican appointees when Obama took office. One of them, J. Harvie Wilkinson III, argued, in a January 2009 article, against the prospect of a liberal Obama “takeover” of the court.
The Reagan appointee also noted the widespread reputation of the Richmond, Va.-based court, covering Maryland, Virginia, West Virginia and the Carolinas, as the most conservative in the country.
“I don’t think you can say that anymore,” said Gregory G. Katsas, a senior Justice Department official in the George W. Bush administration.
Obama nominees, including Judge Andre Davis of Baltimore, have given the circuit a 7-5 Democrat-appointee tilt that could grow to at least 10-5.
Nationwide, Obama is slowly eroding a partisan advantage Republicans created by holding the White House for 20 of the past 30 years.
“Few presidential decisions are more important than lifetime appointments to the federal bench,” Alberto Gonzales, then George W. Bush’s attorney general, said in 2006. “Judicial appointments often represent a president’s most enduring legacy.”
Whether a judge was appointed by a Republican or a Democrat “makes a huge difference,” said Katsas, a former law clerk for Supreme Court Justice Clarence Thomas. While judges sometimes surprise presidents with their actions, Katsas said, “it’s fair to say Obama’s nominees are more likely to lean to the left than to the right.”
The first black president, who once taught constitutional law, is already reducing the historic dominance of white men on the federal bench, by favoring women and minority nominees.
A recent study by the Alliance for Justice, a liberal advocacy group, found that Obama in his first year chose a higher proportion of female, black and Asian-American judges than other presidents during their terms.
That has been particularly true of his picks for appellate benches, the most powerful other than the Supreme Court. Of his first 19 nominees, six were women, five were African-American, two were Asian-American and two Hispanic; only six were white males.
Obama’s initial 4th Circuit choice was Davis, a black U.S. district judge from Baltimore whose formal investiture ceremony was held Friday. The Senate has also confirmed Obama’s second nominee to the circuit, Barbara Keenan, a white woman from Virginia.
The next nominees — one Hispanic, the other black — would, if confirmed, mean that white male judges were no longer a majority on the 4th Circuit.
Measuring Obama’s impact on the ethnic and gender makeup of the federal judiciary is easier than gauging the effect he’s having on ideology.
Conservative advocates and Republican politicians, in an effort to condition public opinion for the coming Supreme Court confirmation fight, are casting his appellate nominees as “activist judges.”
The Republican argument is in line with a long-running attack theme that has kept Obama and the Democrats on the defensive.
Republican National Chairman Michael S. Steele, in a recent blog post, referred to the “out-of-the-mainstream judicial activists” Obama has chosen. A new Republican website highlights what the party describes as “shocking” examples of “liberal judicial activism” by Obama appellate nominees.
Liberals, meantime, have criticized from the other side.
Some are frustrated by what they regard as Obama’s unwillingness, or inability, to begin duplicating a highly successful Republican strategy: planting young lawyers with strong ideological leanings on lower courts, then elevating them to the Supreme Court.
Ellen Lipton Hollander, recently nominated for a U.S. district judgeship in Maryland, fits the pattern that bothers critics on the left. The Maryland Court of Special Appeals judge from Baltimore will turn 61 this month.
She has long experience on the municipal and state bench, another hallmark of Obama judges that distinguishes him from recent presidents.
Judicial careerists are “very conservative choices, because you’re not left to wonder whether this person will be a good judge,” said Tobias.
The latest nominees to the 4th Circuit, which handles major national security cases because of its geographic jurisdiction over agencies like the CIA and states where 9/11 terror suspects have been held, are a pair of North Carolina state judges. James Wynn and Albert Diaz have backgrounds in the military justice system, and neither is considered particularly liberal.
University of Maryland law professor Sherrilyn A. Ifill has praised Obama’s nominees to the court, which encompasses a region with the highest percentage of African-Americans of any circuit. But she also wrote in The Root, an online magazine, that he should seek “greater ideological diversity” and more women.
William P. Marshall, a University of North Carolina law professor and a director of the American Constitution Society, a liberal advocacy group, describes Obama’s nominees as “high quality, high caliber, moderate and mainstream.”
And yet, “mainstream now is a different definition than it was 20 years ago,” Marshall said in an interview, noting that retiring Justice John Paul Stevens, a centrist Republican nominee when he joined the court, is regarded as perhaps its most liberal member today. “Some liberals are disappointed that there hasn’t been an effort made to place the kind of people on the bench that can do battle with the trend.”
Obama’s push for his stimulus and health care plans, and other priorities, made the administration “very reluctant to expend political capital” on fights with Republican senators over liberal judges, Marshall said.
The pace of Obama’s efforts to remake the courts was slowed by last summer’s time-consuming confirmation of Sonia Sotomayor as the nation’s first Hispanic Supreme Court justice, disorganization in the White House counsel’s office and an effective Republican strategy that has blocked routine Senate confirmation of even the most noncontroversial picks.
With his term nearly one-third over, Obama has nominated 66 district and appellate judges and has 83 more vacancies to fill, according to the latest figures from the Administrative Office of the U.S. Courts.
Only 20 Obama nominees have been confirmed, and some liberal supporters worry that he is losing the opportunity to redirect a federal judiciary still dominated by Republican-appointed judges.
This year, though, Obama’s nominations are coming more rapidly. He chose nearly as many judges in the past four months as in all of 2009. And he pleased liberals by selecting University of California-Berkeley law professor Goodwin Liu, 39, who would be the only Asian-American appellate judge and a potential future choice for the high court.
With another Supreme Court nomination fight about to slow other judicial confirmation activity — and with 2010 elections after that — Obama will need the rest of his term to reduce the backlog on the federal bench, perhaps with fewer Democratic senators to help him install left-leaning judges.