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Last month, the Senate voted to confirm Judge David Hamilton to the United States Court of Appeals for the Seventh Circuit. Getting a judge confirmed is always a good thing for a president. But it's hard to view what happened to Hamilton as a victory for Obama. In fact, if anything, the episode suggests that the president's approach to nominating federal appellate judges is seriously misguided.
Back in September, The New Yorker's Jeffrey Toobin reported that the administration nominated Hamilton in order to show that it was taking a new, post-partisan approach to judicial appointments. And Hamilton is indeed a moderate: He was backed by Richard Lugar, a Republican senator from his home state of Indiana, and was endorsed by the head of the Indiana chapter of the Federalist Society, who called his judicial philosophy "well within the mainstream." In fact, if he had been nominated for a more important position--maybe a judgeship on the D.C. Circuit--one could have actually imagined liberals raising concerns.
Yet Hamilton was voted out of the Senate Judiciary Committee on a strictly party-line vote. He was filibustered on the floor of the Senate. And, after cloture was successfully invoked, not a single Republican besides Lugar voted to confirm him.
Hamilton isn't unique. Obama's other federal appellate nominees have also been generally moderate, safe choices. A majority of them have served as prosecutors (usually considered evidence that a judge might lean more to the right than liberals would want). Beverly Martin, a nominee from Georgia, was endorsed by both Republican senators from the state. Albert Diaz was a lawyer for Big Tobacco. Barbara Keenan has upheld the death penalty for crimes committed by juveniles. Joseph Greenaway rejected (in part) claims brought by Nazi labor camp survivors and (also in part) claims brought by immigrants against Wal-Mart. The latter decision, wrote the Alliance for Justice, a liberal group, "has not been well-received by labor and immigrant rights advocates." Appearing before the Senate Judiciary Committee, nominee Andre Davis agreed with some of Senator Tom Coburn's skepticism regarding courts using international law, while another nominee, Gerard Lynch, affirmed Senator Jeff Sessions's platitudes about the need for courts to follow the law rather than make it.
The point is not that any of these nominees would make bad appellate judges, or even that they will necessarily prove disappointing to liberals. It is simply that there were plenty of judges and lawyers with more clearly liberal records and inclinations available--and, instead of seeking them out, Obama opted for relatively cautious, moderate picks.
Yet besides Hamilton, only two of the twelve nominees--Davis and Lynch--have so far been confirmed. Both Davis and Lynch received a substantial number of GOP votes when their nominations eventually reached the floor. But Davis waited 221 days after his nomination to be confirmed, and Lynch waited 168. The reason, presumably, was Republican-orchestrated delay. (It's impossible to know for sure because these things are cloaked in the mystery of arcane Senate procedure. But it seems likely.) By contrast, George W. Bush's nominees confirmed in the first nine months of his term waited an average of 116 days. A small difference? Maybe. But when you combine that with the filibuster of Hamilton and the hostile reception given by Republican Senators to Sonia Sotomayor--whose appointment did nothing to alter the Supreme Court's overall ideological balance and may have even moved it slightly to the right on some issues--it becomes clear that Republicans are not particularly interested in accepting the judicial olive branch that Obama has extended to them.
The lesson here for Obama is simple: If Republicans are going to obstruct even moderate nominees, and if Senate Democrats are sometimes going to have to break filibusters to stop them, then why keep appointing generally moderate judges meant to appeal to Republicans? Why not try to put your own philosophical stamp on the courts?
COMMENTS (4)
I admit to having low expectations of this President. Amazingly, he continues to fail to meet even those. At least, I thought, our con-law-prof-in-chief would be bold on judicial nominations. Silly boy!
I admit to having low expectations of this President. Amazingly, he continues to fail to meet even those. At least, I thought, our con-law-prof-in-chief would be bold on judicial nominations. Silly boy!
I'm not very convinced by this article. Is the implication that empathy requires a judge to always rule for immigrants over Wal-Mart? Or that any claim made by a Nazi labor camp survivor is automatically valid? Upholding the juvenile death penalty is a fair example of a conservative viewpoint, but without more info I have a hard time concluding that Obama's judges are not liberal.
And there's a lot of liberals who want some restrain in our judiciary. Just because I want more money for schools doesn't mean I want courts to force municipalities to raise school funding, for example. The judiciary should protect basic rights, not overturn democratic outcomes whenever they don't fit the judges' po ... view full comment
I'm not very convinced by this article. Is the implication that empathy requires a judge to always rule for immigrants over Wal-Mart? Or that any claim made by a Nazi labor camp survivor is automatically valid? Upholding the juvenile death penalty is a fair example of a conservative viewpoint, but without more info I have a hard time concluding that Obama's judges are not liberal.
And there's a lot of liberals who want some restrain in our judiciary. Just because I want more money for schools doesn't mean I want courts to force municipalities to raise school funding, for example. The judiciary should protect basic rights, not overturn democratic outcomes whenever they don't fit the judges' political views. You can be "empathetic" and still feel that way.
What I want to bring attention to is the Republican filibustering of Obama's nominees. I thought that filibustering a lower court nominee was the depraved act of mad beast, a loathsome and constitutionally inexcusable act. Or at least that's what Republicans were arguing in 2005. I guess the difference is that this time the filibusters aren't holding, but still, this is fast turnaround.
I don't understand why the Senate has made it far too easy and cost-free to filibuster. Republicans want to block Obama's nominees? Fine. Let's go back to the good old days when a filibuster meant reading from the D.C. municipal phone book for 26 hours before dropping to the floor in exhaustion. Let the voting public see this obstructionism for what it really is.
I don't understand why the Senate has made it far too easy and cost-free to filibuster. Republicans want to block Obama's nominees? Fine. Let's go back to the good old days when a filibuster meant reading from the D.C. municipal phone book for 26 hours before dropping to the floor in exhaustion. Let the voting public see this obstructionism for what it really is.
"Is the implication that empathy requires a judge to always rule for immigrants over Wal-Mart? Or that any claim made by a Nazi labor camp survivor is automatically valid?"
Not at all. But "empathy" might lead to an expansive, rather than narrow, construction of constitutional rights. A good example is the Supreme Court case regarding whether a stripsearch of a 13-year-old shcoolgirl to look for painkiller pills violated the 4th Amendment's proscription of unreasonable searches. The text of the 4th Amendment does not even remotely dictate an answer. Adjudicating an answer is all about context and the judge's own predilections about what constitutes a "reasonable" search, including the abi ... view full comment
"Is the implication that empathy requires a judge to always rule for immigrants over Wal-Mart? Or that any claim made by a Nazi labor camp survivor is automatically valid?"
Not at all. But "empathy" might lead to an expansive, rather than narrow, construction of constitutional rights. A good example is the Supreme Court case regarding whether a stripsearch of a 13-year-old shcoolgirl to look for painkiller pills violated the 4th Amendment's proscription of unreasonable searches. The text of the 4th Amendment does not even remotely dictate an answer. Adjudicating an answer is all about context and the judge's own predilections about what constitutes a "reasonable" search, including the ability to step into the shoes of the person being searched. Some of the male justices initially reacted with "what's the big deal? You have to undress in gym!" Justice Ginsburg, who obviously was once a 13-year-old girl herself, admonished her colleagues that they were showing a lack of sensitivity regarding how humiliating that experience would be for a 13-year old girl. Her ability to empathize with the girl eventually persuaded the Court to rule in favor of the girl by an 8-1 vote, with Justice Thomas the only hold-out.