The Bush’s administration’s To Do list in early 2005 was lengthy enough to measure with a yardstick. Along with winning the two Middle Eastern wars—neither of which was going particularly well—the White House sought to remake Social Security, simplify the tax code, usher in what George W. Bush termed the “ownership society,” and, as the president put it in his State of the Union, “end tyranny.” An ambitious agenda for heady times.
But the White House also had some more-prosaic goals. Flush with confidence, and with the backing of Republican leaders of the Senate, it decided to do something about Democrats who were bottling up its nominees to the federal appeals courts, several of whom had been filibustered and kept off the bench.
For conservatives, few things were more important than stocking the courts with like-minded jurists who could stem what they viewed as a rising tide of constitutional relativism. So Senate Republicans threatened to unleash the “nuclear option,” which would have abolished the minority party’s ability to block judges if it refused to give nominees an up-or-down vote on the floor. After weeks of sparring, a compromise that spring allowed some of Bush’s most controversial nominees to ascend to the federal bench. It was a clear victory for the White House—one that angers liberals to this day.
Those liberals want to see President Obama use some of his new second-term moxie to take the same fight back to the GOP, daring Republican senators to block progressive nominees and calling them out when they do. While this president’s plate may be even fuller than Bush’s (what with resolving the budget crisis, keeping the economy afloat, regulating guns, and reforming immigration just on the immediate horizon), advocates believe that Obama has the same opportunity to use the badge of his office to push judges through. Marge Baker, of the left-leaning group People for the American Way, calls it “a legacy issue” for the president—and she hopes he views it that way, too. “You see a different tone in the second term to cut through the nonsense,” Baker says.
For Baker and other liberals, trench warfare over judges is part of an epic struggle with conservatives, raging since the Reagan administration, that makes judge-picking an ideological imperative. The late Robert Bork’s Supreme Court candidacy was an early casualty. Since then, each side has furtively tracked how the makeup of the courts has shifted back and forth from presidency to presidency. At the close of Obama’s first term, the White House could boast that, after a slow start, it has increased the percentage of judges on the federal bench chosen by Democratic presidents from about 39 percent in 2008 to 48 percent. And the administration has worked hard to make the judiciary a more diverse body, particularly increasing the ranks of women and Latinos.
But concern is rising over the escalating rate of vacancies. The number nationwide has nearly doubled to about 10 percent since Obama took office, advocates note. They alternately blame a disengaged White House, a passive Senate leadership, and a recalcitrant GOP for the slow rate of confirmations. While the GOP has filibustered only a handful of Obama’s picks—Democrats blocked more than 10 during Bush’s first term—it has used arcane Senate procedures to stall or slow-walk others. The White House contends that its nominees have awaited votes for far longer than Bush’s did.
What liberals don’t want is a replay of what happened to Goodwin Liu, the young Asian-American law professor from the University of California (Berkeley) nominated in 2010 for a seat on the Ninth Circuit Appeals Court in San Francisco. Liu is considered one of the Left’s brightest legal lights. Wary of his expansionist views of constitutional rights and worried that he would make Obama’s Supreme Court short list, Senate Republicans opposed him at every turn. Neither the White House nor Majority Leader Harry Reid battled particularly hard for Liu, who withdrew last year after a GOP filibuster that had California Democrats urging Reid to use the nuclear option once considered by the other side.
Today, Liu sits on the California Supreme Court, and if Obama really wants to pick a fight, he could renominate him. Now, 56 senators caucus as Democrats, and Republicans are more fearful of alienating minority voters; the move could electrify the president’s base. But a more realistic case—and one of more immediate concern—is that of Caitlin Halligan, a Manhattan lawyer whom Obama tapped in 2010 for the Court of Appeals for the D.C. Circuit, considered to be the second-most-influential court in the nation. Halligan, too, was filibustered by the GOP, which feared another glide path to the high court.
Obama renominated her on the first day of the new Congress, a signal from the White House that it isn’t backing down. Advocates will see the extent to which the president and Reid push for Halligan as a test of their commitment to second-term nominees. Adding to the drama, the National Rifle Association—currently the White bête noire—is among Halligan’s chief opponents. Another wrinkle is the possibility of filibuster reform under consideration in the Senate, which could speed up some confirmations. The GOP, however, is unlikely to fully surrender the right, which it covets, to block Circuit Court judges.
Still, events have a way of pushing the issue of judicial appointments to the margins, and advocates worry about not holding Obama’s attention. In 2005, a few months after Bush’s triumph in the nuclear-option compromise, Hurricane Katrina laid waste to the Gulf Coast. Another casualty: Bush’s ambitious second-term agenda.
This article appears in the Jan. 19, 2013, edition of National Journal as Summary Judgment .
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