With Republicans in control of the Senate for the first time since Barack Obama took office, the president may find it harder to appoint left-wing lawyers to judgeships. Whether he compromises on some of his nominees, including any to the Supreme Court, may depend on the willingness of the new Republican majority to engage the president on judicial philosophy.
For six years, the Democratic Senate has supported President Obama’s efforts to use his nominating power to turn the federal courts in a liberal direction. Central to this project has been the goal of creating Democrat-appointed majorities on the 13 circuit courts of appeal.
As the legal affairs writer Ed Whelan has observed, these courts are especially important, since they handle upwards of 60,000 cases a year, while the Supreme Court decides well below 100. The circuit courts function as mini-Supreme Courts, having the last word in almost all of their cases. They can establish precedent for their circuits on previously unaddressed issues. And agreement among the circuits on a particular matter may dissuade the Supreme Court from accepting it for review—a critical objective for an administration wanting to keep certain issues out of the hands of the Republican-appointed majority on the High Court. Obama thus has sought to nominate—especially to the circuit courts—ideologically sympathetic lawyers young enough to serve for many years.
Since Obama became president in 2009, the number of circuit courts with majorities appointed by Democrats has increased from one to nine. Right now Obama has seven circuit vacancies to fill: one each on the Third, Sixth, Seventh, Eleventh, and Federal circuits and two on the Fifth. A second vacancy on the Seventh Circuit is expected early next year. Republicans created five of those seven vacancies, observes Russell Wheeler of the Brookings Institution, an authority on judicial selection. If Obama is able to fill those seats as well as the other two vacancies, and also the one that opens in the new year, the appointments won’t create any new Democrat-appointed majorities, says Wheeler.
There are 57 circuit judges, however, who are eligible to take senior status (meaning they are at least 65 and their age plus years of service totals 80). Twenty-nine of these judges are Republican appointees. Wheeler says that if, in addition to filling the eight aforementioned seats, Obama were able to replace two of the Fifth Circuit’s six senior-eligible Republican appointees and one of the five in the Seventh Circuit—assuming those judges claimed senior status—both circuits would have Democrat-appointed majorities.
While it may seem likely that Obama will finish his presidency with Democrat-appointed majorities in all but two circuits, it bears noting that many senior-eligible judges stay on for years, which is why Wheeler cautions against predicting that all of them “will suddenly leave active status in the next two years.” He also notes other imponderables that could affect the number of vacancies, such as deaths and resignations.
Wheeler argues from analogy in trying to figure out how many circuit seats Obama might fill during the balance of his term, given a Republican Senate: “If the Senate in 2015-16 were to add proportionately as many circuit judges to Obama’s 2014 total as the Senate added in 2007-08 to Bush’s total, it would confirm 10 or 11 more judges.” That estimate may prove correct, though the measure of success for Republicans is the judicial philosophy of nominees.
Last November, under Majority Leader Harry Reid, Senate Democrats seeking to advance Obama’s goal of a more liberal bench went so far as to eliminate the 60-vote supermajority required to end debate and proceed to a vote on judicial nominations (except those to the Supreme Court). Only the support of a simple majority of senators present and voting—51 senators at most—was henceforth necessary for confirmation. This change in the rules, which ended the minority’s right to filibuster judicial nominees, was made in order to prevent the Republican minority from blocking the confirmation of the president’s most liberal nominees and to ensure, as the New York Times explained, that “left-leaning judges, some of them young and who could serve for decades, were nominated.”
For the administration and Senate Democrats, the demise of the filibuster has accomplished what they wanted. According to Wheeler, it enabled the confirmation of at least six circuit bench nominees to whom Republicans objected, mainly on grounds of judicial philosophy. Presumably, none of the six would have been confirmed had the filibuster not been eliminated.
That Republicans now control the Senate means, of course, that they control the confirmation process. Their majority enables them to stop an unacceptable nomination at various points: They can deny the nominee a committee hearing; they can vote the person down in committee; they can refuse to schedule a vote on a nomination sent to the floor; and the full Senate can vote to reject the nomination. The Republicans’ majority status also strengthens their negotiating position with the White House, making it more likely that a mutually acceptable candidate will be chosen for a given seat.
How Obama approaches judicial selection—and how Republicans respond—now becomes an important story and will remain so until the Senate shuts down judicial confirmations, probably in the summer of 2016 if Senate custom in presidential-election years is followed.
Obama—he of the emphatic statement that all of his policies, “each and every one,” were on the midterm ballot—will be under pressure from the base of his party not to concede that judicial philosophy was “on the ballot” and, by implication, rejected. The base will want Obama to keep nominating liberals. Republican senators, however, may be strengthened in their resolve to challenge Obama on judges by the apparent success of ads in several Senate races won by Republicans; the ads sharply criticized Democrats seeking reelection for supporting Obama’s judicial nominees “with radical backgrounds,” as one ad put it.
The day after the midterms, a remarkable skirmish broke out in Washington among aides to some Republican senators and their allies in legal and media circles. It turns out that a few Republican senators are interested in reinstating the judicial filibuster. This would mean that a 60-vote supermajority was again required to end debate on a nomination and move it to a vote. Whether the idea will gather support and actually be voted on sometime in the next two years is a question.
Even if the judicial filibuster were revived, though, it’s hard to imagine its actual use during the next two years: The Republicans will have no need of it, as they will have other means of ending a nomination, and the Democrats will have no interest in opposing a Democratic president’s nominee.
The real issue is what would happen in 2017 should the filibuster be reinstated. Opponents of such a change argue that, if the Democrats won the presidency and the Senate in 2016, the new Democratic Senate would again eliminate the filibuster, as it did last year, thus making it easier to get the new Democratic president’s most liberal nominees confirmed. But if the Republicans won the presidency and the Senate and remained committed to the filibuster, that would make it harder to get the new Republican president’s most conservative nominees confirmed.
Opponents of reviving the filibuster argue that it “would cement a partisan double standard,” as Sen. Orrin Hatch and coauthor Boyden Gray (White House counsel to the first President Bush) wrote in the Wall Street Journal last week. Thus, “when Democrats control the White House and Senate, judicial nominations need only 50 votes; but when Republicans control both, judicial nominations require 60 votes, allowing Democratic minorities to block Republican nominations.”
The likely new majority leader, Mitch McConnell, hasn’t taken a position on this matter, at least not publicly. Aides to several senators told me he expects senators will discuss the issue among themselves. It pits what one aide called the “institutionalists,” who think the filibuster can moderate the often contentious politics of judicial selection, against those who see no point in going back, especially since that would disadvantage Republicans.
While the senators ponder this matter, more pressing business will soon be upon them—such as deciding whether or not to confirm whatever nominees Obama sends to the Senate in his last two years.
Terry Eastland is an executive editor at The Weekly Standard.
