Under Obama, the Federal Judiciary Lurched to the Left
Nine of the 13 U.S. Courts of Appeals have more judges appointed by Democrats than by Republicans.
Barack Obama may lose his Obamacare legacy when Congress repeals and replaces it, but he has left the nation a far bigger and more damaging legacy. Sen. Charles Schumer (D-NY) gloated in 2014, “one of the most profound changes this Congress made was filling the bench” with Obama’s appointments of federal judges. He went on: “This will affect America for a generation, long after the internecine battles on legislative issues are forgotten.”
Obama is proud of his record. “I am — not to brag — but I have transformed the federal courts from a diversity standpoint with a record that’s been unmatched,” he said. That is mostly true. A scholar of judicial appointments, Sheldon Goldman, observed that “The majority of Obama’s appointments are women and nonwhite males.” Though only 43 percent of his appointments were women, the former president appointed 11 openly gay judges, more than 10 times as many than any other president. (President Clinton appointed lesbian Deborah Batts as a judge on the U.S. District Court for the Southern District of New York in 1994.)
Why does this matter? Everyone focuses on the Supreme Court. But the Supreme Court hears fewer than 100 cases a year. The lower federal courts handle about 135,000 per year. The vast majority of cases decided by the lower courts become law in their respective circuits. A liberal bench there means a huge number of liberal decisions affecting almost every aspect of American life.
Obama’s Liberal Legacy
Obama got 329 federal judges appointed to the circuit and district courts, all lifetime appointments. The Daily Signal characterizes the change in composition of the courts as a revolution that has been “comprehensive, dramatic, and under the radar.” Liberal legal analyst Jeffrey Toobin says Obama’s legal legacy is especially strong in the areas of same-sex marriage and blocking voter identification laws.
Obama stealthily appointed judges who appeared to be non-ideological but then ended up “on the same side as outspoken liberals,” according to conservative legal experts quoted by Politico. Ed Whelan, for example, noted that between one of Obama’s leftist appointments and his “moderate” appointments, “on a broad range of matters there’s not a dime’s worth of difference.”
When Obama entered office in 2008, only one of the 13 United States Courts of Appeals had more Democratic appointed judges than Republican. 99 circuit court judges had been appointed by Republicans, 65 by Democrats. Now, nine of the appeals courts have more Democratic-appointed judges.
One-third of judges currently serving on the federal bench were appointed by Obama. He got two more judges confirmed than George W. Bush did during his two terms as president. Carrie Severino, chief counsel for Judicial Crisis Network, observed that “Obama was just very aggressive in getting those spots filled.”
Obama appointed left-leaning judges. He stealthily appointed judges who appeared to be non-ideological but then ended up “on the same side as outspoken liberals,” according to conservative legal experts quoted by Politico. The Ethics and Public Policy Center‘s Ed Whelan, for example, noted that between one of Obama’s leftist appointments and his “moderate” appointments, “on a broad range of matters there’s not a dime’s worth of difference.”
But did the Republicans object? Over 200 of Obama’s nominees were confirmed unanimously. Ken Cuccinelli, president of the Senate Conservatives Fund, said Senate Republicans “handed over the keys to the judiciary without a fight.” Republicans successfully filibustered just two nominees.
Not all senators completely caved. Sen. Richard Burr (R-NC) has continued to block one of Obama’s nominees for district court, even though the judgeship has been vacant since 2005. Texas senators Ted Cruz and John Cornyn, both Republicans, objected so strongly to many Obama nominations that many of the vacancies are now considered “judicial emergencies” due to large caseloads.
Changes in the Courts of Appeals
The United States Court of Appeals for the D.C. Circuit (informally considered the 13th circuit) is considered the second most powerful court in the country, after the Supreme Court. It hears cases involving the federal government.
Ken Cuccinelli, president of the Senate Conservatives Fund, said that during the Obama administration, Senate Republicans “handed over the keys to the judiciary without a fight.”
When Obama assumed office, the court consisted of six judges appointed by Republican presidents, three named by Democrats, and two vacancies. When Senate Republicans objected to three of Obama’s nominees for that court, Democrats invoked the “nuclear option.”
On November 21, 2013, the Democratic majority shut down the ability of Senate Republicans to filibuster Obama’s judicial nominees. The rule requiring 60 votes to bring up a nominee for a confirmation vote was interpreted to only require 51.
Democrats successfully pushed through the three judges, as well as a fourth later on, changing the composition to a 7-4 split in favor of Democratic appointees. How did this affect the court’s decisions? The new court rejected a challenge to Obamacare in Halbig v. Burwell. In another decision, an Obama appointee cast the deciding vote upholding the Federal Communication Commission’s Net Neutrality censorship regulations.
When Obama took office, the United States Court of Appeals for the Fourth Circuit had more Republican-appointed judges. It was known as one of the most conservative circuit courts in the country, encompassing West Virginia, Virginia, North Carolina, and South Carolina. Obama’s appointees changed the balance.
Two Obama appointees out-voted a Reagan appointee on a three-judge panel to rule against North Carolina’s voter identification law. They also held that a transgender student (a male identifying as female or vice versa) must be allowed to use the opposite sex’s restrooms and showers. One of the two justices was confirmed by the Senate in a 96-0 vote. Severino says the Fourth Circuit “is now on the cutting edge of liberal activism.”
But He Couldn’t Change the Supreme Court
Obama couldn’t change the composition of the Supreme Court, however. It remains divided between conservative and liberal judges, with Anthony Kennedy in the middle. Obama merely replaced two left-leaning judges with Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general.
Republicans in the Senate prevented Obama from replacing the late Antonin Scalia last year. That would have changed the balance. They refused to bring Obama’s nominee Garland Merrick up for a vote. The senators argued that the decision should be left to the next president.
The left had hoped SCOTUS Justices Ruth Bader Ginsburg and Stephen Breyer would retire during Obama’s terms so he could replace them with liberal justices. Breyer is 78. Ginsberg is 83 and suffers from health issues. They didn’t, but are thought likely to retire during Trump’s first term, and almost certainly during his second if he has one.
The Pendulum Swings Back
Democrats knew when they implemented the nuclear option that it would eventually be used against them.
When Republicans took over the Senate in 2015, they stopped the easy approval process, leaving 86 district court and 17 circuit court vacancies for Trump to fill. In contrast, Obama only had 59 total vacancies to fill when he became president. Just 22 appointments were confirmed during the Senate’s 2015-16 session. Senate Majority Leader Mitch McConnell let 25 nominations expire instead of scheduling confirmation votes.
With Republicans in control of the Senate and Donald Trump as president, it should be fairly easy to confirm right-leaning judges. Democrats knew when they implemented the nuclear option that it would eventually be used against them. Trump has said he will encourage McConnell to use it if Democrats filibuster Neil Gorsuch, his pick to replace Justice Scalia.
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