Did Obama win the judicial wars?
Did Obama win the judicial wars?
By: Michael Grunwald
President Barack Obama was fired up.
He had just revealed his Supreme Court nominee in the Rose Garden, and as he began his next meeting with progressive legal activists in the Roosevelt Room, he couldn’t stop rhapsodizing about his choice to cap his judicial legacy. Merrick Garland was Obama’s kind of judge—a meritocrat with two Harvard degrees who had served 18 years on America’s second-highest court; a mensch who tutored inner-city kids and had just wept while discussing his family; and a moderate cited by Republican leaders as the kind of non-controversial, non-ideological judge Obama ought to pick for the Court.
Now the Republicans were vowing to block anyone Obama picked, and the president loved the idea of calling their bluff with their own recommended candidate. He knew Garland’s chances of slipping past the GOP blockade were slim, but he figured they were better than anyone else’s.
“This is the right man at the right moment,” Obama said.
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 argued that with the ideological balance of the Court at stake after the death of conservative Justice Antonin Scalia, Senate Republicans would undoubtedly reject a younger or more liberal nominee, probably ruining that nominee’s chances of ever ascending to the Court. He noted that overall, his judicial appointees had been far more diverse than any previous president’s, and they had already shifted the bench to the left. In any case, he said, Garland was his guy—and the Constitution didn’t specify that Democratic presidents should lose their prerogative to appoint justices in their final year. This would be another battle between the White House and the GOP, and it was time to pick sides.
“If you can’t get excited about him,” Obama said, “then make this about me.”
It’s not yet clear whether Obama’s judicial legacy will include a Justice Garland, who could swing the direction of the highest court for decades. But even if the Garland nomination stalls, Obama has already reshaped the judiciary, not only the Supreme Court but the lower courts that hear more than 400,000 federal cases every year. And the unprecedented move by Senate Republicans to deny Garland a hearing is just the most intense skirmish in a larger battle over Obama’s nominees, a battle that has transformed the politics of the judiciary in ways that will reverberate long after his presidency.
Ultimately, most of those battles over judges have really been about Obama, a nasty front in the larger partisan war that has raged throughout his presidency. And as with most of the foreign and domestic policy battles of the Obama era, the result, after a lot of bellicose rhetoric and political brinksmanship, has been a lot of change. 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, with the Garland standoff only the most prominent example of amped-up partisan hostilities. Republicans say Obama’s transformation of the judiciary proves they aren’t just a legislative party of no, and it’s true the White House has worked closely with some GOP senators to fill lower-court vacancies in their states. 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.
In November 2013, Senate Democrats got so frustrated by the GOP’s refusal to confirm any of Obama’s nominees to the D.C. Circuit, the influential appeals court on which Garland is chief judge, that they adopted the so-called “nuclear option,” abolishing the filibuster for all judges below the Supreme Court. Going nuclear helped break the logjam for long-stalled Obama nominees, a key reason Obama’s confirmation numbers eventually caught up to Bush’s. But Democrats might regret it under the next Republican president, and the GOP is already using its control of the Senate to retaliate. In 2007-08, a Democratic Senate approved 68 Bush judges. In 2015-16, the Republican Senate has approved only 22 Obama judges, and GOP leaders have suggested they may not confirm any more.
The world of judicial nominations is an odd D.C. subculture, closely watched by insiders but mostly invisible to the public. The occasional Supreme Court fights attract attention, but not the day-to-day maneuvering over lower-court judges who tend to labor in obscurity unless a presidential nominee insults their ethnic heritage. Still, it’s a consequential battleground for Americans who have cases pending in the courts—and for every other American who must live with the results. The judicial system is a powerful institution that’s supposed to be strictly nonpartisan, but many of the norms that sustained it for generations have broken down.
Obama made his first judicial nomination in March 2009, quietly selecting David Hamilton, a long-serving, well-respected, ideologically indistinct district court judge in Indiana, to the Seventh Circuit Court of Appeals. “Moderate Is Said to Be Pick for Court,” the New York Times reported. White House officials leaked that the middle-of-the-road choice was designed to send a signal that the president hoped to “reduce the partisan contentiousness of judicial confirmation battles,” an intentional contrast to Bush, who had announced his first 11 judicial nominees, including some outspoken conservatives, at a high-profile Rose Garden ceremony.
“We would like to put the history of the confirmation wars behind us,” a senior administration official told The Times.
The boring-centrist route made sense for several reasons. For starters, Obama has made it clear he believes the political system, not the court system, is the proper venue for pursuing change, a common view where he taught constitutional law at the University of Chicago. The liberal activism of the Warren Court produced big victories for the left in the 1960s, but in his book The Audacity of Hope, Obama suggested that Democrats had become overly reliant on judges to compensate for their losses at the polls, that “in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”
Even if Obama had wanted to stack the courts with fire-breathing liberals, the GOP was already signaling they would never confirm them. Traditionally, the Senate only considers judges that have the support of both home-state senators, and after Obama took office, every Senate Republican signed a stern letter vowing to be aggressive in enforcing that tradition. The letter also suggested that if Obama did not want a “needlessly acrimonious” process, he ought to reappoint previously rejected Bush nominees, including a co-founder of the Federalist Society.
The Republicans didn’t really expect a new Democratic president with a message of change to keep stocking the bench with movement conservatives. But they were letting Obama know he’d invite fights by nominating liberals with paper trails—and at a time when the two parties were already clashing over an economic emergency, health reform and much more, the last thing he wanted was extra fights. Obama’s first chief of staff, Rahm Emanuel, made it clear internally that he didn’t want to waste precious political capital on polarizing judges while trying to pass a stimulus bill, Obamacare and new Wall Street rules. Emanuel compared himself to an air traffic controller trying to land multiple jetliners, and said he didn’t want a flock of geese flying into the middle of them.
Judge Hamilton seemed unlikely to stir up geese. He had strong support from Republican Senator Richard Lugar of Indiana and even the head of the Indiana Federalist Society. Nevertheless, the Senate Judiciary Committee’s Republicans all boycotted his confirmation hearing, forcing him to return a month later to testify again. And after the Democrats sent his nomination to the Senate floor, Republicans filibustered, with some arguing he was anti-Christian because he once ruled that the Indiana legislature couldn’t open its sessions with Christian prayers. Lugar pointed out that he and Hamilton attended the same Methodist church, where Hamilton’s father was pastor and mother sang in the choir, but there was still a five-month delay before he was confirmed—and every Republican except Lugar voted no.
“We went out of our way to find candidates who couldn’t be called liberal activists, who wouldn’t be controversial at all,” says Gregory Craig, Obama’s first White House counsel. “The reaction to Judge Hamilton was a very early sign that our efforts to be non-partisan were not going to matter.”
Obama directed his vetting team to look for excellence, diversity and a sense of empathy. Conservatives have attacked that last priority, calling it a euphemism for a focus on liberal outcomes rather than the rule of law. But in practice, the team’s real focus has been finding candidates who wouldn’t be mini-Scalias but would be acceptable to Republican senators. They knew they faced inevitable clashes over Supreme Court nominees who would shape the direction of the law—both Sotomayor and Kagan were confirmed largely along partisan lines—but when it came to the lower courts, which are merely supposed to follow the Court’s guidance, they hoped to avoid drama. The left wanted the president to pick ideological fights to demonstrate his values, arguing that even losing battles could help expose the extremism of the right, but Obama’s aides thought losing battles were a waste of time and political capital.
“We weren’t fans of the inside-the-Beltway symbolic gesture,” says Kathryn Ruemmler, Obama’s counsel from 2011 to 2014. “Our goal was to fill vacancies.”
Vermont senator Patrick Leahy, who chaired the judiciary committee, made it clear he would honor the “blue slip” system that gave home-state senators a veto over potential nominees, so filling vacancies required cutting deals. In South Carolina, the White House accepted Republican senator Lindsey Graham’s recommendation to elevate a Bush district court appointee, Henry Floyd, to the Fourth Circuit appeals court. Floyd later issued decisions striking down Virginia’s ban on same-sex marriage and endorsing the right of transgender public school students to use the bathrooms of their choice. At the behest of Utah senator Orrin Hatch, Obama nominated a personal injury attorney named Robert Shelby to a district court. Christopher Kang, a former deputy White House counsel who vetted nominees, says he only learned Shelby was a registered Republican while reading news reports about his 2013 decision to strike down Utah’s same-sex marriage ban.
“He just seemed like a really thoughtful lawyer, and he had a lot of bipartisan support,” Kang says. “Our feeling was always, if we can get fair-minded, call-it-down-the-middle judges confirmed, that’s going to lead to positive change.”
Often, though, the interactions with Republican senators were less smooth, and there wasn’t much the White House could do about it. Richard Burr blocked one Obama district-court nominee in North Carolina even though he had recommended her nomination; that seat is now the nation’s oldest vacancy, unfilled since 2005. Georgia’s GOP senators have also scuttled nominations they initially approved, and Marco Rubio of Florida has done so twice, while Republicans in Pennsylvania and Alabama have held up appeals-court nominees they had already recommended for lifetime jobs on district courts. Under the Senate rules, that’s their prerogative.
Kang and other former Obama aides also complain that GOP senators from a few deep-red states—known inside the White House as “orphan states”—have insisted that vacancies be filled with the conservative activists of their choice or no one at all. It’s no coincidence that more than one third of the current judicial emergencies are in Texas, where senators Ted Cruz and John Cornyn have little political incentive to compromise with a president their base despises. Or that the Fifth Circuit that covers Texas still churns out conservative opinions on issues like abortion, affirmative action and voting rights. Or that one Bush appointee in Texas was so outraged by the Obama administration’s handing of an immigration case that he ordered all Justice Department lawyers appearing in 26 states to take ethics courses. Elections—including Senate elections—have consequences.
The nation’s oldest appeals-court vacancy, a Seventh Circuit seat that has remained vacant since January 2010, reflects the senatorial Calvinball that drives Obama aides nuts. Republican Ron Johnson of Wisconsin blocked Obama’s initial nominee after his election that November, then demanded the creation of a new in-state commission to recommend new candidates, then insisted that any Obama nominee would be illegitimate after the commission deadlocked. Meanwhile, the Seventh Circuit has issued several rulings—including one by a 5-5 vote that an extra judge could have swayed—upholding strict voter-ID laws enacted by Wisconsin’s GOP-controlled state government, laws that could help Johnson get reelected. An Obama district court appointee recently ruled some of those laws unconstitutional, calling them “a cure worse than the disease,” but the Seventh Circuit will decide.
In 2010, Obama did make an exception to his no-controversy approach to nominate Berkeley professor Goodwin Liu, who had written favorably about affirmative action and same-sex marriage, and had made inflammatory remarks about Justice Alito. Liu turned out to be the exception that reinforced the rule. Former Obama aides say they were always skeptical that he could get confirmed to the Ninth Circuit appeals court, but progressive activists confidently assured them that Republicans senators would come around. In the end, only one voted to end her party’s filibuster—Lisa Murkowski of Alaska, who was bitter at GOP leaders for supporting her primary challenger—and the nomination stalled. Some liberals accused the White House of hanging Liu out to dry, and at times its efforts on his behalf did seem a bit perfunctory, but confirmations are numbers games, and Democrats were nowhere near the 60 votes they needed to break the filibuster.
“The left kept insisting this was eminently doable, all we had to do was push,” says one former White House official. “Give me a break. We got one Republican vote, and she just wanted an excuse to tell her colleagues to go f--- themselves.”
Ever since the defeat of Liu, who now serves on the California Supreme Court, Obama has mostly gone with under-the-radar nominees. More than 200 of his judges have been confirmed unanimously, while only 46 have received as many as 20 no votes. Even the periodic controversies over Obama’s lower-court nominees have felt strained—a Rhode Island lawyer who had donated to Obama’s campaign, a New York prosecutor who had written an essay attacking the National Rifle Association while in college, a Connecticut judge who had delayed the execution of a serial killer while a dispute over his competence to stand trial was still pending. Liberal activists argue that as long as Republicans were obstructing moderates as if they were radicals, Obama might as well have nominated liberals.
“The Bush administration was very open that it was looking for judges who would move the courts as far to the right as possible, and they were very successful,” says Kyle Barry, who works on judicial nominations for the Alliance for Justice. “Obama obviously took a different approach.”
Conservative legal experts argue that Obama’s ostensibly non-ideological nominees usually end up on the same side of decisions as outspoken liberals, so just as it makes sense for the White House to try to avoid controversy, it makes sense for Republicans to slow-walk his nominees. “On a broad range of matters there’s not a dime’s worth of difference between a Goodwin Liu and a so-called moderate,” says Ed Whelan, president of the Ethics and Public Policy Center. Privately, White House officials tend to agree, grousing that progressive groups are always pushing them to take on politically damaging but substantively inconsequential fights. The daylight between left and center-left could become crucial if Scalia’s eventual replacement ends the era of conservative control of the Supreme Court, but in the lower courts, it rarely affects the way a judge handles civil litigation or a drug trafficking case.
“The groups want bleeding-heart liberal judges, but you don’t need bleeding-heart liberals to get the kind of justice we need,” one aide told me.
Still, Republicans have consistently delayed even consensus nominees, clogging the Senate calendar, ratcheting up pressure on overwhelmed courts. Two Democrats pointed out that John Roll, the federal judge killed by the gunman who also shot Gabby Giffords, had come to Tucson to talk to the congresswoman about his escalating caseloads. Experts also worry the current process, with its extreme vetting and unpredictable timetables, is scaring off talented lawyers who have ever said anything interesting in a public forum. (There’s also an informal ban on nominees who have used marijuana since passing the bar or harder drugs ever—which presumably means Obama, often touted as a potential justice, would be ineligible.) One judge appointed by Obama told me the process forces nominees into a bizarre state of psychological limbo, where high-achieving attorneys suddenly become helpless pawns in a political game. When he recalled checking the Senate website to see if his nomination had been added to the daily calendar, I joked that he was probably hitting refresh-refresh-refresh when he was supposed to be working.
“You think you’re joking,” he replied. “The process really sucks.”
It has certainly inflamed tempers in the Senate. When Judge Hamilton was finally confirmed, Leahy unleashed a vituperative speech comparing his delay to the Salem witch trials. But to Republicans, the notion that their partisanship is unusually vicious or that politics has gotten meaner than ever is laughable. One GOP Senate aide who handles judicial nominations recalled that in 1856, a congressman nearly caned a senator to death on the Senate floor. Forcing lawyers to wait a few extra months for a lifetime job does not seem quite so savage.
“I keep hearing about this ‘new level of vitriol,’ but have some perspective,’” the aide said. “I mean, Aaron Burr shot a guy. I think the Republic will survive this.”
In Obama’s first term, the White House saw Republican judicial obstruction as annoying but not debilitating. It prevented the nominations of liberal firebrands, but Obama wasn’t interested in nominating liberal firebrands. It slowed down confirmations, so if Obama had lost the 2012 election his judicial legacy would have been historically modest, but he didn’t lose, so it seemed like he would have plenty of time to fill up the courts. But there was one court that Republicans didn’t want Obama to fill, and it prompted one of the key showdowns of the Obama era.
The court was the D.C. Circuit, which handles appeals involving just about everything Washington touches, from national security to campaign finance, Obamacare to Obama’s Clean Power Plan. The D.C. Circuit had been disputed ground ever since Democrats blocked Bush’s first nominee, Miguel Estrada, the first appeals court nominee ever successfully filibustered. That prompted the first “nuclear option” fight, with Republicans threatening to pull the trigger, but a compromise was reached where the two parties agreed to reserve judicial filibusters for extraordinary circumstances. Bush ended up moving the D.C. Circuit considerably to the right, filling four vacancies with conservative favorites.
Obama’s aides thought of his first nominee for the circuit, Caitlin Halligan, as a classic rule-of-law moderate—and certainly more in the mainstream than, say, Janice Rogers Brown, a Bush appointee who has argued that most of the New Deal was unconstitutional—but Republicans filibustered her anyway, citing her support for lawsuits against gun manufacturers as New York’s solicitor general. Obama renominated Halligan four times, but she couldn’t get past the GOP filibuster.
“One Republican senator told me: ‘Kathy, she’s absolutely terrific, but you know I’m not going to be able to support her,’” recalls Ruemmler, Obama’s counsel at the time. “It was clear we had a serious problem with the D.C. Circuit.”
Ruemmler began clamoring about the problem internally in the second term, and Obama’s chief of staff, Denis McDonough, started weekly meetings about the D.C. Circuit with top aides like Valerie Jarrett and Dan Pfeiffer. In May 2013, Obama finally got his first judge on the court, when the Senate unanimously confirmed Sri Srinivasan. But that still left three vacancies on the court, and some key Republicans were suggesting publicly that it didn’t need any more judges, even though they had filled the court under Bush. Ruemmler argued that Obama needed to “turn up the volume,” and in June, he held a Rose Garden ceremony to nominate Patricia Millett, Robert Wilkins and Nina Pillard, his first big public push for lower-court judges.
Pillard, an outspoken feminist litigator and law professor, did not fit the Obama pattern of low-profile nominees with minimal paper trails. In fact, White House sources say they never expected her to get confirmed. They figured she would be a sacrificial lamb, a scalp Republicans could claim while confirming Millett, an uncontroversial appellate lawyer, and hopefully Wilkins, an African-American judge who had been confirmed unanimously to the D.C. district court in 2010.
But the Republicans decided to filibuster all three nominees, to stop Obama from shifting the balance of the court. They didn’t think they’d pay a political price, since most voters ignore lower-court nominations, while grass-roots conservatives who loathe Obama tend to pay closer attention. And they didn’t think they had to worry about the nuclear option, since Leahy and other long-serving Democrats had defended the use (if not the abuse) of the filibuster even with Republicans in the minority. A standoff after Republican filibusters had prevented Obama from staffing agencies like the Consumer Financial Protection Bureau had ended with a compromise, and some Democrats say Republicans were openly taunting them that they wouldn’t have the guts to go nuclear over a few obscure judges.
But the Republicans miscalculated. The Democrats decided they had no option except the nuclear option, a decision they now admit they never would have made if even one of Obama’s three nominees had been confirmed. “That would have let the steam out of the kettle,” says Senator Jeff Merkley, the leading Democratic advocate of rules reform. Merkley says many of his colleagues believed that the minority party ought to be able to block judges, but Republicans overplayed their hand by dropping the pretense that they had principled objections to the specific nominees, making it clear they simply didn’t want anyone Obama sent. They hoped to avoid a reprise of what happened on the once-conservative Fourth Circuit, which had upheld Virginia’s strict parental notification law and ruled that nicotine couldn’t be regulated as a drug early in Obama’s presidency, but had ruled in Obama’s favor in a high-profile Obamacare case after he got to fill several vacancies.
“We only built the political momentum because they went to such extremes to undermine the president,” Merkley says. “They were saying: ‘We’re blocking everyone, and we dare you to change the rules.’ We didn’t have much choice.”
The nuclear option meant the Democrats could approve judges by a majority vote, opening the floodgates for Obama’s pending nominees. All three D.C. Circuit judges were confirmed on party-line votes, including Pillard, who later authored a key decision upholding the mandated contraception coverage in Obamacare. Several other contested appeals-court nominees—including David Barron, Pamela Harris, and Michelle Friedman, who have all been mentioned as potential Supreme Court picks—also got through in 2014. And just when it looked like the Democrats had eliminated as much of Obama’s backlog as they could, they got an unlikely assist from Ted Cruz, who kept the Senate in session to protest Obama’s immigration policies, an extension the Democrats used to confirm a dozen more judges.
“God bless Ted Cruz for that one,” Merkley says.
These machinations rarely get press. There hasn’t been a high-profile political battle over a district court nomination since 1999, when the Senate rejected an African-American Missouri judge named Ronnie White along party lines, after a racially tinged debate about whether he was “pro-criminal.” The White case made national headlines for months, and became a key issue in a Missouri Senate race. But there was virtually no publicity 14 years later when White was quietly renominated by Obama and then, after the nuclear option, confirmed by the Senate—once again along party lines.
Of course, the public is now getting to see the result of the escalating partisan arms race. After Democrats changed the Senate rules to get around Republican obstruction in the lower courts, Republicans took back the Senate, and they’ve gotten revenge by bringing a new level of obstruction to the Supreme Court.
In a 2013 article in Judicature magazine, conservative legal activist Curt Levey speculated that if Obama had a chance to replace Justice Scalia or another one of the Court’s five-member conservative majority, there could be “a battle to end all battles.” He said the Republican goal would be to “force him to nominate someone who may more truly be a moderate. A Merrick Garland or somebody.” But he predicted that if Obama did nominate Garland, the right would stand down.
“I think he’s about the best we can do, frankly,” Levey was quoted as saying. “I would be shocked if he weren’t confirmed.”
After Scalia’s death, Senator Hatch also cited Garland as the kind of moderate Obama ought to choose for the Court. But when he did so a week later, Hatch and his Republican colleagues agreed they would not even give Garland a hearing, so the next president would get to pick the next justice. And when I spoke to Levey, he was thrilled the GOP was standing firm, and had changed his talking points accordingly.
“We didn’t expect a conservative, but Garland’s a pretty solid liberal,” he said.
There’s plenty of hypocrisy to go around in the confirmation wars. It wasn’t long ago that Democrats were decrying Republican threats to deploy the nuclear option as assaults on the institution of the Senate. The larger point is that it’s becoming increasingly tough to see these escalating battles as anything other than exercises in raw political power. The nuclear option didn’t apply to the Supreme Court, but it’s hard to imagine a future Senate majority allowing a filibuster of a Supreme Court nominee from a president of the same party. That will give future presidents much less of an incentive to avoid ideological extremes; as one White House official noted, a Hillary Clinton elected with a Democratic Senate would be free to sub out Garland for “the love child of Eric Holder and Elizabeth Warren.” A President Trump with a Republican Senate would have similar carte blanche.
Nobody has paid much of a political price in the confirmation wars yet, which is one reason they’ve gotten so ugly. But Democrats are now running ads attacking Republican senators for blocking Garland in states like Ohio, New Hampshire, and Iowa, where Senate Judiciary Committee chairman Chuck Grassley has admitted the issue is hurting his reelection campaign. The Democratic message is not so much that voters should care about the judiciary, but that the Republican partisans are doing Trump’s bidding instead of doing their job. Meanwhile, on the GOP side, party leaders intend to use the Supreme Court vacancy as get-out-the-vote motivation for conservatives who are otherwise unenthusiastic about Trump.
Perhaps the elevation of the judiciary as a voting issue will be another legacy of the Obama era, along with the radicalization of confirmation battles that has left 10 percent of the federal judiciary vacant. Otherwise, Obama’s judicial legacy will come down to 329 men and women in black robes. They are gradually moving the bench to the left, but they are quickly making it look more like America. Obama has appointed more women, blacks or Hispanics than any other president, more Asian-Americans than all previous presidents combined. In his second term, he’s also pushed for professional diversity beyond the usual mix of state judges, prosecutors and corporate lawyers, putting more former public defenders on the appeals courts than all his predecessors combined.
Conservatives have criticized the obsessive White House focus on finding, as Whelan put it, “the first left-handed Latina judge in the western district.” Even the president, on a visit to his old University of Chicago haunts to promote Garland, dismissed the notion that “I need a black lesbian from Skokie in that slot.” But Obama also boasted about the unprecedented diversity of his appointees. His legacy may not include a third Supreme Court justice who can defend abortion rights and environmental rules, but it will include jurists like Carlton Reeves, who once cleaned the office of Mississippi’s first black federal judge, and later became the second.
Last year, before sentencing three white men for beating a black man named James Anderson to death and then running over his body with a truck while yelling “white power,” Reeves made them listen to an extraordinary speech about the history of racist violence in Mississippi. He called the killing “a 2011 version of the nigger hunts,” bemoaning how “a toxic mix of alcohol, foolishness and unadulterated hatred caused these young people to resurrect the nightmarish specter of lynch mobs from the Mississippi we long to forget.” But he also described how the court system—including a black prosecutor who served under a black attorney general as well as a black judge who, he did not need to mention, had been appointed by a black president—had worked to make sure justice was served.
“The court knows that James Anderson’s mother, who is now 89 years old, lived through the horrors of the Old Mississippi, and the court hopes that she and her family can find peace in knowing that in the New Mississippi, justice is truly blind,” Reeves said.
That kind of courtroom drama doesn't get covered like a precedent-setting Supreme Court decision. But it’s change, too.