SOC 205 SU Presidents Effect in Appointing Federal Judges Discussion

“President’s Effect in Appointing Federal Judges and Analysis of the 2013 Decision Regarding DOMA” Please respond to the following:

Referring to the study regarding the effect of presidential philosophy on the selection of judges in chapter 7, determine two (2) ways in which presidential philosophy can impact judicial decision making. Draw three (3) conclusions from the study. Provide specific examples to support your rationale.

From the e-Activity, summarize three (3) key issues that the DOMA decision of 2013 addressed that fall under the Fourteenth Amendment of the U.S. Constitution. Indicate which of the three (3) issues you believe will have the greatest overall impact on society in the future. Justify your response in detail.

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CHAPTER 7 Policy Links among the Citizenry, the President
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July 3, 1999, www.nytimes.com.
8. Ibid., 257.
FURTHER THOUGHT AND DISCUSSION QUESTIONS
1. When presidents make judicial appointments, should they anticipate how their
nominees are going to rule on important policy decisions, or should they consider
only the quality of their formal credentials, such as their ranking in their law
school graduating class, the number of Law Review articles that they published,
and/or the relative prestige of their professional accomplishments?
2. Over time the judicial appointees of Republican presidents have had decidedly
more conservative decision-making records on the bench than those of judges
selected by Democratic chief executives. Is this evidence that our judicial
system has been “tainted” by politics, or is it proof that the democratic process
prevails throughout our political system? What does this suggest about judicial
independence?
2001, A1.
SUGGESTED RESOURCES
Epstein, Lee, and Jeffrey Segal. Advice and Consent: The Politics of Judicial Appointments. Oxford:
Oxford University Press, 2007. A thorough discussion of the politics of the judicial selection process
and how this process does—and does not-reflect the democratic process.
Goldman, Sheldon. Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan.
New Haven, Conn.: Yale University Press, 1997. Based on thorough, careful scholarship, Goldman
writes in easy-to-follow prose about the judicial selection process between 1933 and 1989.
Goldman, Sheldon, Elliot Slotnick, and Sara Schiavoni. “Obama’s Judiciary at Midterm.” Judicature 94
(2011): 262–303. A review of the judges appointed by President Barack Obama and the confirmation
battles during his first few years in office.
Judicature 92 (2009). The entire issue is devoted to the impact of President George W. Bush on the
federal judiciary.
Yalof, David Alistair. Pursuit of Justices: Presidential Politics and the Selection of Supreme Court
Nominees. Chicago: University of Chicago Press, 2001. A thorough discussion of the political
pressures upon presidents as they select people to nominate for a position on the U.S. Supreme
Court.
5. Sam Hananel, “Judicial Nomination Held Up over Same-Sex Ceremony,” Detroit Free Press,
6. Neil A. Lewis, “Clinton Critic Is Key to Deal to End Tie-up on Judgeships,” New York Times,
October 6, 2006, www.freep.com/apps/pbcs.dll/article?AID=/20061006NEWS99/310060004.
7. Henry J. Abraham, The Judicial Process, 3rd ed. (New York: Oxford University Press, 1975), 77.
9. James A. Farley, “Why I Broke with Roosevelt,” Collier’s, June 21, 1947, 13.
10. See Jon Gottschall, “Carter’s Judicial Appointments: The Influence of Affirmative Action and
Merit Selection on Voting on the U.S. Courts of Appeals,” Judicature 67 (1983): 165–173.
11. See Jon O. Newman, “The Judge Baer Controversy: Correspondence from the White House,
Senator Dole, Congressmen, and Judges,” Judicature 80 (1997): 156.
12. Bennett Roth, “Bush Submits 11 Names for Federal Bench,” Houston Chronicle, May 10,
13. As quoted in Sheldon Goldman, Elliot Slotnick, Gerard Gryski, Gary Zuk, and Sara Schiavoni,
W. Bush Remaking the Judiciary: Like Father Like Son?” Judicature 86 (2003): 284.
14. Carl Hulse, “Post-Filibuster, Obama Faces New. Anger over Judicial Choices,” New York
Times, February 27, 2014, www.nytimes.com/2014/02/28/us/politics/post-filibuster-obama-
faces-new-anger-over-judicial-choices.html.
15. See Jennifer Bendery, “House Democrat Unleashes on Obama Judicial Nominees, White
House Pushes Back Hard,” Huffington Post, February 26, 2014, www.huffingtonpost
.com/2014/02/26/david-scott-obama-judicial-nominee_n_4861043.html.
16. Carl Hulse, “Obama Judicial Choice Is Urged to Withdraw,” New York Times, September 22,
2014, www.nytimes.com/2014/09/23/us/obama-judicial-choice-michael-p-boggs-is-urged-
to-withdraw.html.
17. Associated Press, “Thune: Federal Judge Nominees Are ‘Good Picks,” Rapid City Jour-
nal, September 9, 2009, www.rapidcityjournal.com/articles/2009/09/09/news/doc4aa7f 74c
398bf352231062.txt.
18. Gary Martin, “State’s Senators Recommended Two for Federal Bench,” Houston Chronicle,
July 20, 2011, B2.
19. Carolina A. Miranda, “Just What Is a ‘Wise Latina,’ Anyway?” Time, July 14, 2009, www.time
.com/time/politics/0,8599,1910403,00.html.
20. Fox News, “Senate Confirms Sotomayor to U.S. Supreme Court,” August 6, 2009,
www.foxnews.com/politics/2009/08/06/senate-prepares/sotomayor-confirmation-vote.
21. Dana Milbank, “In Kagan, Obama Picks a Nominee, Not a Fight,” Washington Post, May 11,
2010, A2.
22. Ibid. Also, for an excellent discussion of President Obama’s quest for diversity on the federal
bench, see Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni
, “Obama’s Judiciary at
Midterm: The Confirmation Drama,” Judicature 94 (2011): 262–304.
23. Jeffrey Toobin, “Are Obama Judges Really Liberals?” The New Yorker, September 21, 2009,
www.newyorker.com/reporting/2009/09/21/090921fa_fact_toobin.
24. Jerry Markon and Shailagh Murry, “Federal Judicial Vacancies Reaching Crisis Point,”
Washington Post
, February 8, 2011, www.washingtonpost.com/nationalvacancies-on-federal-
25. Kirk Mitchell, “Colorado Seeks Two Additional Federal Judges, Citing Backlog,” Denver Post,
July 1, 2015, www.denverpost.com/news/ci_28416014/colorado-seeks-two-additional-
26. See Gallup Daily: Obama Job Approval, www.gallup.com/poll/113980/gallup-daily-obama-
27. Matt Viser, “Senators Can Still Block Nominations without Filibuster,”Boston Globe, November 29,
2013, www.bostonglobe.com/news/politics/2013/11/29/with-filibuster-gone-senate-attention-
will-shift-alternative-means-thwart-obama-court-nominees/7Xo7mLycJLokNinOuraHQN/
28. Goldman, Slotnick, and Schiavoni, “Obama’s Judiciary at Midterm,” 280.
job-approval.aspx.
NOTES
1. Sheldon Goldman and Elliot Slotnick, “Clinton’s First Term Judiciary,” Judicature 80
(1997): 256.
2. “Judicial Performance in the Fifth Circuit,” Yale Law Review 73 (1963): 90-133.
3. Jack Nelson, “Courts’ Main Hope for Reagan Social Stand,” Houston Chronicle, March 18,
1986, A6.
4. Jon R. Bond, “The Politics of Court Structure: The Addition of New Federal Judges, “Law and
Policy Quarterly 2 (1980): 182, 183, 187.
story.html.
29. Ibid.
F
CHAPTER 7 Policy Links among the Citizenry, the President
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Also intriguing are the numbers reported in Table 7.1, which looks at the decision
making of judges selected by the nine most recent presidents, divided into three
general categories: criminal justice (such as motions made by criminal defendants),
civil rights and liberties (such as freedom of speech, abortion, gay rights, and racial
discrimination), and labor and economic regulation (such as disputes between labor
and management, environmental protection cases, and governmental efforts to reg.
ulate business)
With a liberal decision rate of 33.1 percent, the decisions by Obama judges in
criminal justice cases have not been as liberal as other Democratic presidents and are
comparable to those of judges appointed by Republican Gerald Ford. By comparison,
37.9 percent of the Clinton judges’ decisions have been liberal, which is about on par
with Carter’s judicial team.
We see some significant differences in the area of civil rights and liberties.
Obama’s judges voted on the liberal side of these cases 43.4 percent of the time
certainly much more liberal than the score of 32.3 for the George W. Bush team.
and also slightly more than the score of 41.4 for the Clinton judges. Interestingly,
Obama’s judges appear to be much less liberal in these cases than the appointees
of Democratic presidents Johnson and Carter. Conversely, only 32.3 percent of the
George W. Bush cohort voted on the liberal side of issues pertaining to the Bill of
Rights and civil rights matters.
We find some of the most significant differences in labor and economic regulation
cases. The judges appointed by Obama hand down liberal decisions 64 percent of
and Carter. When compared to the 50.9 percent liberalism rate by George W. Bush
the time in these cases, on par with the judicial appointees of Presidents Johnson
these cases when compared to the jurists selected during the previous administra-
jurists, one sees that the Obama jurists have staked out very different positions in
tion. The data suggest that Obama judges are more liberal in economic and labor
regulation cases than judges selected by any other president.
The results identified in these three main policy areas may not be too surprising.
Taken in sum, the data show that the judges appointed by Obama are certainly more
left of center than the jurists appointed by Republican presidents. However, the data
also indicate that the Obama judges are not extremists. They are mainstream liberals
largely in line with the judges appointed by previous Democratic presidents.
It may be that the high rate of liberalism seen in the labor and economic realm is
a reflection of the economic and political times
. Obama won election in 2008
, a year
in which the United States saw an epic collapse of financial markets. The president
was sworn in during the worst economic downturn the nation had faced since the
Great Depression of the 1930s, and there were many calls for bold action by the
federal government to address the crisis. Though the political parties disagreed on
the causes for the financial meltdown of 2008, there was agreement at least among
Democrats that greater government oversight of financial markets and the private
sector could have avoided much of the economic turmoil and would have gone a long
way in protecting consumers, homeowners, and workers. It would not be unreason-
able to speculate that the liberalism rate of the Obama jurists identified in labor
and economic cases reflects, at least to some extent, this preference for government
regulation of the economy.
With time we will almost certainly gain a clearer picture of whether this holds
true or not. Most of the Obama jurists are still in the early years of their service on
the bench, and the quantity of cases they have decided is still relatively small when
compared to the number of judges and cases decided by previous presidents
‘ appoin-
tees. As such, the data trends seen here may change over time, and these data should
therefore be considered an “early glimpse” rather than a definitive final analysis
of the Obama judges. The true imprint of the Obama jurists will be determined via
thousands of more cases decided in the years, even decades, to come.
TABLE 7.1 Percentage of Liberal Decisions in Three Categories of Cases
Rendered by District Court Appointees of Presidents Lyndon B. Johnson through
Barack Obama
Civil Rights and
Liberties
Labor and
Economic
Regulation
Appointing President
Criminal Justice
Johnson
63.4
36.9
57.4
Nixon
51
26.8
37.7
Summary
Ford
33.1
38.6
52.7
Carter
61.9
37.6
50.1
Reagan
49.8
25.3
32.6
George H. W. Bush
49.8
26.9
33.3
Clinton
55.6
At the national level the judicial selection process includes a variety of participants,
despite the constitutional mandate that the president shall do the appointing with the
advice and consent of the Senate. If presidents are to dominate this process and name
to the bench individuals with similar policy values, several conditions must be met.
Chief executives must want to make ideologically based appointments; they must
have an ample number of vacancies to fill; they must be adroit leaders with political
clout; and the existing judiciary must be attuned to their policy goals. If most of these
conditions are met, presidents tend to get the kinds of judges they want. In other
words, an identifiable policy link exists among the popular election of the president,
the appointment of judges, and the substantive content of the judges’ decisions.
37.9
41.4
George W. Bush
50.9
29.1
32.3
Obama
64
33.1
43.4
Source: Data collected by Robert A. Carp, Kenneth L. Manning, and Ronald Stidham.
CHAPTER 7 Policy Links among the Citizenry, the President
170
Judicial Process in America
171
years—since June 2011.
cooperative.35 As of September 2015, Texas had seven vacant district court judge-
ships, with no nominees pending. One of those positions had been empty for over four
Other Republican delaying tactics included frequent refusals of unanimous con-
sent to floor votes on nominations and extensive use of holds on nominees by indi-
vidual senators.36 And there was little question that those delays and obstructions
were deeply tinted by partisanship. In April 2013, Senate Judiciary Committee chair
Patrick Leahy, a Democrat from Vermont, noted that at that time “of the 35 judicial
emergency vacancies, 24 are in states with Republican senators. In fact, close to half
of all judicial emergency vacancies are in just three states, each of which is repre
.
sented by two Republican senators.”37
Still, 2014 would turn out to be a high-water mark for the Obama administration
in gaining approval of its judicial nominations. Republicans gained a majority of the
seats in the Senate after the 2014 elections and, with that, they seized control of the
Senate Judiciary Committee and the judicial confirmation process. By July 2015 it
was clear that Obama’s luck had sharply changed, and the Senate approval process
ground to a virtual halt. One news report observed that the GOP-controlled Senate
was on track that year to confirm the fewest judges since 1969.38 The reporters noted
that “Republicans say there’s little reason to shift gears with a lame-duck president
in office and hopes running high that they will win the White House [in 2016]. ‘It’ll be
a slow, steady pace,’ said Senate Majority Whip John Cornyn (R-Texas).”39 In 2012,
the final year of Obama’s first term, the president faced particularly stiff opposi-
tion from Republicans who sought to block his judicial nominations by invoking the
“Thurmond Rule.” This informal Senate tradition, which emerged in the 1960s, dic-
tates that senators will generally not approve lifetime appointments during the final
months of a lame-duck president’s term of office. By invoking the Thurmond Rule
that year, Republicans effectively ground the judicial nomination process
to a halt.
Given the continuing partisan rancor over judges, it’s very possible that the GOP will
invoke this “rule” again in 2016 and bring the process to a virtual standstill in the
final months of Obama’s presidency.40
The Obama administration has also had a few high-profile judicial nominees
blocked outright by Republicans. Goodwin Liu, who was tapped in 2010 for a seat
on the Ninth Circuit Court of Appeals, withdrew his name after Senate Republi-
cans blocked a vote on his confirmation via a filibuster in 2011.” In 2013 a similar
fill a vacancy on the D.C. Court of Appeals. Halligan withdrew her name from con
parliamentary fate befell Caitlin Halligan, who was selected by President Obama to
sideration after the Senate
GOP twice blocked her nomination from coming up fora
vote in the Senate. Both Liu and Halligan were considered to be very accomplished
and qualified nominees but were staunchly opposed by Republicans who argued that
the nominees were too ideological. In a post-filibuster Senate these nominees pre-
sumably could have been approved. Still, they were two high-profile defeats for the
Obama administration in the ongoing judicial confirmations battles.
So what is one to conclude about the impact of Obama’s political clout in terms of
his success in shaping the judiciary with his court appointments? In spite of the presi-
dent’s diminished political effectiveness that quickly followed his election victory, and
despite the delaying tactics of Republican opponents on the Judiciary Committee and
in the Senate, a decided majority of his nominees were confirmed. One could spec-
ulate that had his nominees been more left of center, his success scores might have
been lower than they were.
The final ingredient in the president’s capacity to make an ideological mark on the
federal judiciary is the judicial environment that new judges enter. If it is unfavor-
able because the judiciary is packed with jurists whose ideologies are opposed to that
of the appointing president, the chief executive may have a long wait before the new
appointees can fully vent their judicial values. On the other hand, if the judiciary is
evenly divided, or even somewhat disposed to the president’s ideological values, the
fruits of the appointments will be much more readily seen.
How did this affect President Obama’s potential to leave his ideological mark on
the composition of the judiciary? At the end of the George W. Bush administration,
roughly 60 percent of lower federal judges bore the Republican label
. Thus, when
Obama assumed office, the judiciary was clearly dominated by those who did not
share his Democratic values.
As of September 2015, as President Obama was about to complete his seventh year
in office, 56 percent of “active” federal judges at the time had been appointed by Dem-
ocratic presidents, while 44 percent had been selected by Republican chief executives.
When one factored in judges with “senior judge” status, the numbers were fairly sim-
ilar: of all federal jurists on the bench, 51 percent were Democratic appointees while
49 were those chosen by GOP presidents.42 Thus it seems fair to say that Obama has
shifted the ideological split in a direction more favorable to Democrats, though overall
there remains a fairly even balance among all judges on the federal courts. In sum, the
data indicate that Obama has been able to move the ideological balance of the courts in
a leftward direction and the overall picture is that of a federal bench that is reasonably
close to the political center.
As this book went to press, Obama had approximately fifteen months remaining
in office. By the end of his presidency in January 2017 the judiciary will almost cer-
tainly be more Democratic-between additional Obama appointments and the cer-
tain departure of older judges (many of whom were appointed by Ronald Reagan in
the 1980s). However, this shift is not likely to be dramatic. The Republican majority
in the Senate is unlikely to open the door to a significant number of Obama nominees
to be confirmed in the final months of his term, and the effects of time on sitting
judges tend to be slow and gradual. Obama will leave a notable imprint upon the judi-
ciary, but the next president could very well enter office with a significant number
of judicial vacancies in place, giving him or her the potential opportunity to leave a
significant mark on the bench.
The Decision-
making Behavior of the Barack Obama Appointees
Figure 7.1 (p. 161) and Table 7.1 provide a look at the decision-making patterns
of President Obama’s trial court appointees. As already noted, the data reported
in Figure 7.1 indicate that 49 percent of the Obama judge decisions have been lib-
eral. This places his judges to the left of the Republican appointees and also of those
judges selected by Bill Clinton. However, Obama’s judges are slightly less liberal
than the jurists selected by Presidents Johnson and Carter:
CHAPTER 7 Policy Links among the Citizenry, the President
168
Judicial Process in America
169
lame-duck President Obama faced the prospect of working with a potentially hostile
Senate in no mood to give the administration many accomplishments.
In terms of Obama’s success vis-à-vis the Senate judicial confirmation process,
the way. Russ Wheeler of the Brookings Institution noted, “It used to be more colle.
the record has been one of ups and downs, with plenty of delay and acrimony along
gial. Minority senators realized elections had consequences and the federal system
needs judges. [Now] all those rules are out the window. It’s fighting tooth and nail
every day.’27 In this struggle so far the Obama administration achieved quite a bit of
success, some notable failures, and plenty of continual obstructionism.
During the early months of the Obama administration, scholars observed that
“the (Senate Judiciary] Committee did its job, with the greatest obstruction and
delay of Obama nominees occurring at the floor stages of confirmation. Behind such
a generalization are layers of nuance that shaped both committee and floor activ.
ity and, at times, the lack thereof.” These experts further noted that this “surface
cooperation” was somewhat deceptive: “It would be a vast overstatement to suggest
that the minority members of the committee simply ‘went along with the adminis-
tration’s picks. To the contrary, there was a pattern of regularized and systematic
opposition that had an impact on the processing of virtually all Obama nominees, but
that impact could be seen, in most instances, in processing delay, not definitive and
resolute obstruction save for a handful of … nominees. “29
This “delaying action” on the part of opponents to Obama’s judicial appointees was
intense for quite a long time. Considering Obama’s first full term, two respected judi-
cial researchers observed that Obama’s judicial nominations “faced nearly historic
delays in reaching the Senate floor, and confirmation rates for the nation’s federal
trial and appellate courts remained depressed.”30 The average length of the confir-
mation process for Obama’s successful appellate court nominees during his first term
was around 220 days; it was approximately 190 days for district court positions. By
historical standards, these numbers are very high, even compared to the Clinton and
George W. Bush administrations.31 As recently as the early 1990s, the average length
of time was around 100 days, and during much of the 1970s the average length of the
confirmation process for a successful judicial nomination was well under 50 days. As
for Obama’s political influence, these data clearly indicate that the administration
was unable to spur prompt Senate action on the president’s judicial nominations,
However, though the process was long and drawn out, Obama nominees in the
111th (2009–2010) and 112th (2011-2012) Congresses were confirmed at higher rates
than were George W. Bush’s nominees: the Senate confirmed roughly 60 percent of
Obama’s appellate court nominations but only 50 percent of Bush’s nominees. The
confirmation rate for Obama’s district court nominees during his first term was
around 65 percent, slightly better than George W. Bush’s nominees. These numbers
do not approach those seen prior to the 1980s, when nearly 90 percent of judicial nom-
inees gained Senate approval.32 Still, in terms of the sheer percentage of nominees
approved, the data indicate that a majority of Obama’s nominees were confirmed.
the Senate and the White House came in November 2013, when Democrats changed
Perhaps the most notable development in the power struggle over judges between
the Senate rules and eliminated the possibility of a filibuster for lower court nominees.
Republican refusals to allow votes on numerous presidential nominations, particu-
The rule change was precipitated by increasing frustration among Democrats toward
larly three nominees to the D.C. Circuit Court of Appeals.33 The judicial candidates in
question at the time were well-regarded, highly qualified individuals with strong cre-
dentials. Still, Republicans filibustered their nominations and refused to allow a vote
on their approval, arguing that the D.C. Court was underworked and did not need the
judges. Most legal experts considered that argument unfounded, and reports indi-
cated that Democrats increasingly came to feel that the GOP was altering the balance
of power between the executive and legislative branches by refusing to allow the duly
elected president to fulfill his constitutional authority to appoint jurists and other gov-
ernmental officials. Sen. Elizabeth Warren, a Democrat from Massachusetts, asserted
that “Republicans] have filibustered people [President Obama) has nominated to fill
out his administration, and they are now filibustering judges to block him from filling
any of the vacancies with highly qualified people: We need to call out these filibusters
for what they are: Naked attempts to nullify the results of the last election. “24
The 2013 filibuster rule change paved the way for a significant number of judicial
nominees to be approved. Senate Majority Leader Harry Reid (D-Nev.) sought to
gain approval of numerous judicial nominees in 2014, particularly since it was clear
that Democrats risked losing control of the Senate in that year’s elections. Obama
got Senate approval of 101 nominees in the thirteen months after the filibuster rule
change in the 113th Congress, a figure that is nearly one-third of the 308 judges
selected by Obama as this book went to press. Alas, it wasn’t all success for Obama
that year. Attention turned to the use of another tactic-the “blue slip” process-as
a means for delaying or blocking judicial nominations. The blue slip tradition dictates
that when a judge is nominated by the president, the chair of the Senate Judiciary
Committee sends a form (printed on aqua-hued paper) to home-state senators seek-
ing their approval of a judicial nominee. If the senators approve, the committee may
move forward with the nomination. However, if one or both of the senators withholds
the blue slip or signals their disapproval, the nomination typically stalls. The blue slip
process is not mandated by law or by Senate rules; it is, rather, an institutional norm.
After the filibuster rule change there was indication that the blue slip process was
being used by Republicans as a means for preventing President Obama from filling
judicial vacancies. For example, in June 2013 President Obama nominated Jennifer
May-Parker to a U.S. district court position in North Carolina after she had been
recommended for the position by Republican senator Richard Burr from that state.
However, after she was selected, Senator Burr reversed his position and withheld his
blue slip support for May-Parker. The nomination eventually failed; Senator Burr
refused to allow her name to go forward and the nomination effectively died when
judicial positions remained unfilled and lacked nominees, reportedly due in large part
Congress ended its 113th session on January 3, 2015. In Texas a number of federal
to the blue slip process. One news report indicated that the White House sought
Lone Star State before any names were formally put forward by the administra-
informal preclearance of any nominees from the two Republican senators from the
be used by the senators to block any nominations. However, the senators were not
tion. This was because the White House realized that the blue slip process could
CHAPTER 7 Policy Links among the Citizenry, the President
166
Judicial Process in America
167
pasts.
thought. There is little evidence for the proposition that Obama has sought to appoint
rigid ideologues to the bench. In fact, the indication is that the Obama administration
has generally tried to avoid acrimonious political battles by appointing mainstream
Democrats and typically eschewing nominees with especially controversial
The administration has also shown willingness to engage in deal-making at times
with Republicans in order to accomplish the president’s judicial selection goals. Fur-
thermore, the data strongly indicate that the Obama administration is following in
the footsteps of George W. Bush and Bill Clinton in seeking to increase the diversity
of the judiciary. As of September 2015, some 63.1 percent of Obama’s federal judges
were women and/or members of ethnic minority groups. One administration official
noted that “the unifying quality that we are looking for is excellence, but also diver-
sity, and diversity in the broadest sense of the word. We are looking for experiential
diversity, not just race and gender. We want people who are not the usual suspects, not
just judges and prosecutors but public defenders and lawyers in private practice.”23
The second element affecting a president’s capacity to influence the ideological
direction of the judiciary is the number of vacancies the chief executive can fill. This
is, of course, influenced by the number of vacancies inherited from the president’s
predecessor, how long the president serves in office, and whether or not Congress
enacts legislation that significantly increases the number of judgeships. When Barack
Obama assumed the presidency in 2009, he inherited fifty-nine judicial vacancies,
forty-four at the district court level and fifteen in the courts of appeals. Democrats
who controlled the Senate in the final years of the George W. Bush administration
were in no mood to approve the judicial nominees of the then-unpopular, lame-duck
president. President Obama thus came into office with a sizable number of vacancies
to fill. However, the number was not as high as that which greeted George W. Bush
when he took the reins of power in early 2001. At that time, Bush was presented
with twenty-nine courts of appeals and sixty-two district court vacancies. Still, with
fifty-nine judicial positions open, Obama had the opportunity to make a good start in
filling the bench with judges who shared his philosophy.
Despite this initial opening opportunity for the president, the Obama White
House was slow to fill many judicial vacancies and was subjected to criticism for this
lack of enthusiasm and activity. Two court watchers at the Washington Post noted
in 2011, “Federal judges have been retiring at a rate of one per week this year, driv-
ing up vacancies that have nearly doubled since President Obama took office. The
departures are increasing workloads dramatically and delaying trials in some of the
nation’s courts.” And later they observed, “Since Obama took office, federal judicial
vacancies have risen steadily as dozens of judges have left without being replaced
by presidential nominees. Experts blame Republican delaying tactics, slow White
mation process during the Obama years has been a roller coaster of victories and
nominations improved as Obama’s time in office increased, but the judicial confir-
would give the president the opportunity to pack the judiciary with men and women
of like-minded values—a phenomenon that greatly enhanced President Kennedy’s
What about the possibility of Congress passing a new omnibus judges bill that
and President Carter’s ideological impact on the judiciary? Unfortunately for
President Obama, he has had no such luck. Measures were introduced in Congress
between 2009 and 2015 to create a few new judicial positions, including a bipartisan
2015 effort in Colorado to add two new permanent district court judgeships in that
rapidly growing state.25 But between the budget-cutting mentality that prevailed in
Congress and the bitter political divisions that characterized the times, Congress
has shown no indication that it would offer the president an omnibus judges bill that
would serve to increase his impact on the federal judiciary.
So what are we to conclude about this second predictor of whether President
Obama will potentially have a substantial impact on the ideological direction of the
federal judiciary—the number of vacancies he can fill? The data suggest that despite
a slow start by the administration in nominating judges and extraordinary obstruc-
tionism by Republicans in the Senate, the president is having about an average set
of opportunities to make an ideological impact on the federal bench. Obama placed
172 jurists on the bench in his first term. This number is not small, but it was below
the 205 judges appointed by his predecessor, George W. Bush, during his first term
in office. However, the pace of nomination approvals improved dramatically in 2014.
As President Obama approached his final fifteen months in office, he had appointed
309 jurists to the federal bench, some 38 percent of all active judges as of Septem-
ber 2015. This is in line with the total count of judges selected by George W. Bush
during his two terms (324). However, Obama does not appear to be on pace to match
or exceed the total number of jurists tapped by Bill Clinton (372) or Ronald Reagan
(364). In terms of sheer numbers, Obama is likely to make a substantial, though not
record-breaking, imprint upon the federal judiciary.
A third variable affecting the president’s ideological impact is the extent of his
political clout—that is, his power and skill in nudging the Senate and Senate Judi-
ciary Committee to approve his nominees. Also included in this variable is the chief
executive’s personal popularity
, which, if great, can enhance his capacity to attain
confirmation of his nominees.
What about President Obama’s political influence? Although the president was
elected by a clear electoral majority in 2008—and reelected by a decisive margin
in 2012—his political “glory days” have been limited. The high approval numbers
given to the president during his early months in office were fleeting, and throughout
much of his second term President Obama’s net approval rarely topped 50 percent.
As of September 2015, the president’s approval rating as measured by Gallup stood
Of course, the president was able to get a number of pieces of progressive legislation
at 45 percent, with 51 percent disapproving of the way Obama is handling his job.26
law. The administration also scored some notable victories before the Supreme Court,
passed during this first two years in office, including his landmark health care reform
historic win on same-sex marriage. But it’s also true that much of the Obama legisla-
including twice winning crucial cases dealing with the Affordable Care Act and the
tive agenda ground to a virtual halt after the 2010 elections, when Republicans recap-
tured control of the House of Representatives and a series of bitter budgetary battles
subsequently dominated relations between Capitol Hill and the White House. And
when Republicans gained control of the Senate after the November 2014 elections, a
9924
disappointments.