Did Obama win the judicial wars?
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Liberals say he shied away from too many battles and ran into GOP roadblocks. But the result is still a transformation of U.S. courts.
President Barack Obama was fired up.
The activists weren’t so sure. They were liberals; Garland wasn’t. They wanted a nominee who could add diversity to the Court, or at least energize minorities in an election year; Garland was a mild-mannered 63-year-old white man. The legal left had backed Obama’s judges in the past, even though they tended to be low-profile centrists in the Garland mold, but the attendees had hoped that in the twilight of his presidency, the former law professor might go a bit edgier. “There was definitely disappointment in the room,” recalls Mee Moua, an Asian-American advocate.
The activists weren’t so sure. They were liberals; Garland wasn’t. They wanted a nominee who could add diversity to the Court, or at least energize minorities in an election year; Garland was a mild-mannered 63-year-old white man. The legal left had backed Obama’s judges in the past, even though they tended to be low-profile centrists in the Garland mold, but the attendees had hoped that in the twilight of his presidency, the former law professor might go a bit edgier. “There was definitely disappointment in the room,” recalls Mee Moua, an Asian-American advocate.
Obama has already appointed 329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction. He got two left-leaning women onto the Court: Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general. He also flipped the partisan balance of the nation’s 13 courts of appeals; when he took office, only one had a majority of Democratic appointees, and now nine do. Just last week, two Obama appointees to the Fourth Circuit Court of Appeals struck down some of North Carolina’s strict new election law, calling it a discriminatory effort to stop blacks from voting.
Obama is a political pragmatist and a public advocate of judicial restraint, so he hasn’t nominated the dream judges of the left. But he certainly hasn’t appointed the kind of Federalist Society conservatives that George W. Bush favored, so liberal activists—who have indeed put aside their misgivings and supported Garland—have mostly approved of his impact on the justice system.
His appointees have already taken the progressive side in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving his own health reforms and carbon regulations. And they really are diverse; 43 percent of Obama’s judges have been women, shattering the old record of 29 percent under Bill Clinton, and 36 percent have been non-white, surpassing Clinton’s record of 24 percent. Obama has appointed 11 openly gay judges, when before him there was only one.
But the more lasting legacy of the Obama era may be the dysfunction of the confirmation process
The Republicans blame Democrats for starting the confirmation wars by keeping Robert Bork off the Court in 1987, and argue that Obama invited payback when he voted in the Senate to filibuster Justice Samuel Alito.
Still, the situation today is not normal. Sheldon Goldman, an academic who crunched historical data to create an Index of Obstruction and Delay, found that the index reached record highs under Obama even before the GOP took control of the Senate in 2015 and slowed the flow of confirmations to a trickle. While Obama has gotten two more judges confirmed than Bush did in his eight years—Clinton and Ronald Reagan both got about 50 more—judicial vacancies have more than doubled in the Obama era after getting cut in half during the Bush era. There are now 29 understaffed courts designated “judicial emergencies,” up from 12 when Obama took office. And those numbers don’t reflect how Senate Republicans turned even uncontroversial lower-court nominations into legislative ordeals, converting the filibuster, previously extremely rare, into a routine tool of delay, often for judges who were eventually confirmed unanimously. Only three district court nominees had ever been filibustered before Obama, but it happened to 20 of Obama’s.
{This] is change, too.
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