President Barack Obama will spend much of the next five months defending his record on everything from the economy to national security, but while his accomplishments in those realms are debatable, his shortcomings with respect to seeding the federal judiciary are evident to liberals and conservatives alike.
Whether or not the root cause is Republican obstructionism in the Senate or the White House’s own lack of interest in pushing through appointments, the results are starkly clear. The president has simply filled positions at a slower rate than his predecessor, George W. Bush, who made placing conservative-minded jurists in the courts a top priority of his administration.
Court-watchers still vividly recall the Rose Garden ceremony three months into Bush’s tenure when he announced a slate of circuit court appointees, and in doing so essentially signaled that his White House was prepared to fight to push his picks through. And while Obama has had his successes, notably with his U.S. Supreme Court choices, his administration has enjoyed no such resonant moment.
Now, perhaps, time is running out for Obama. With job growth nationwide still sluggish, it’s very possible that Mitt Romney will be president next year. And that means that the conservative judicial nomination machine will begin cranking anew. On the stump, Romney often speaks of restoring the “rule of law” to government—whatever that may mean—and he has praised sitting high court justices such as John Roberts, Antonin Scalia, and Clarence Thomas. While Romney may not have made judges into the kind of issue Bush did on the trail in 2000, Curt Levey of the Committee for Justice, a conservative advocacy group, expects him to be just as aggressive.
“He’s going to want to reassure conservatives, and a good way to do it is to have really strong court picks,” Levey says.
It would take some effort for Romney to match Bush’s achievements, however. “No question that George W. Bush changed the landscape of American law,” says Sheldon Goldman, a law professor at the University of Massachusetts, who tracks judicial selection.
Typically, in four years, a president will remake about 20 percent of the federal judiciary. All in all, Bush appointed 325 federal judges in his two terms, including, of course, Roberts and Samuel Alito. While some of his administration’s failures made headlines—Miguel Estrada being blocked from the U.S. Court of Appeals for the D.C. Circuit, for example—Bush’s White House played the long game and won. His administration restocked courts all over America, with only a few spots lost along the way.
“When Bush came in, about half of the judiciary was Republican [appointees]; when he went out, it was about 60 percent,” says Robert Carp, a federal courts expert at the University of Houston.
By contrast, Obama has managed to secure confirmation for about 140 judges so far, approximately 30 fewer than Bush had when he was at this point in his presidency, even as the judicial vacancy rate has skyrocketed. Senate Republicans, led by Senator Mitch McConnell of Kentucky, have filibustered two Obama picks, Goodwin Liu to the Ninth Circuit and Caitlin Halligan to the D.C. Circuit, and bottled up scores of others. Obama stands a chance of leaving office with more open seats on the bench than when he arrived.
The results, by the way, are in on those Bush appointees—and they come down pretty much as one might expect and as liberal groups have long feared. The Bush cadre is the most conservative crop of jurists in recent U.S. history.
In his research, Carp has made a practice of coding every decision handed down by a federal court as “conservative” or “liberal” by using a basic criteria for each term. (For instance, a decision siding with a labor union would be termed “liberal.”) Under his system, Bush’s judges handed down a smaller percentage of so-called liberal decisions than Ronald Reagan’s or George H.W. Bush’s appointees, particularly in the area of civil liberties.
In fact, says Carp, the Bush judges have shown “the most conservative voting pattern of any judges going back to Woodrow Wilson on civil rights and liberties.” Although, he adds, that should be no surprise, given that Bush campaigned on issues such as rolling back affirmative action, limiting gay rights, and restricting abortion.
“He did what he said he was going to do,” Carp says. “He said, if elected, these were the kind of judges he was going to appoint, and these were the kind of values they were going to reflect.”
No judge recently may have reflected this sentiment more than one of Bush’s more controversial choices, Judge Janice Rogers Brown of the D.C. Circuit. The selection of Brown, a former California high court justice, led to fierce blowback from liberal groups. In an otherwise unexceptional case involving federal regulation of the milk industry, Brown took the occasion to advocate for a restoration of “economic” constitutional rights, a long-discredited legal doctrine that was used as a bludgeon to strike down government regulation in the early part of the twentieth century.
“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers,” Brown wrote. “And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
Brown’s views are not mainstream, even by modern conservative standards, although the thrust of her argument isn’t all that different than those made against Obama’s health care law before the Supreme Court. But it should be noted that Brown made it to the D.C. Circuit, along with another polarizing choice, Brett Kavanaugh, the former aide to Whitewater counsel Kenneth Starr. The number of judges Obama has been able to place on that all-important appeals court? Zero.
Still, Bush’s judges aren’t a monolithic bloc—and it would be unfair to paint them all with the same brush. Moreover, as Carp notes, his research indicates that the large majority of federal judges rule solely on the basis of the evidence before them.
And there have been some surprises along the way. Take Judge Jeffrey Sutton of the Sixth Circuit, a former Scalia clerk who voted last year to uphold the Obama health care law, citing a bedrock principle usually embraced by conservatives: deference to the elected legislature. Kavanaugh, too, showed a willingness to buck the tide on the health care law, writing last year that a challenge to it was premature.
Judge Jeffrey White, a district court judge in San Francisco and a Bush appointee, recently ruled that the Defense of Marriage Act, passed by Congress to restrict same-sex benefit rights, is unconstitutional. White also refused to dismiss a lawsuit against a former Bush U.S. Department of Justice lawyer brought by suspected terrorist Jose Padilla. Cathy Seibel, a Bush appointee on the district bench in New York, riled some conservatives last year by holding that the Second Amendment doesn’t extend to the right to carry concealed weapons in public.
Diane Sykes, a judge on the Seventh Circuit and another Bush appointee, was also part of a panel decision last year that said that the Supreme Court’s ruling in District of Columbia v. Heller didn’t extend to the public carrying of firearms, calling it “unsettled territory.” Sykes, Sutton, and Kavanaugh are often mentioned as possible Supreme Court picks by a Romney White House.
Will their departure from orthodoxy damage their chances for a spot on the nation’s highest court? The Committee for Justice’s Levey doesn’t think so. (Although it should be noted that the early-line favorite is Paul Clement, the former Bush solicitor general and more recently, a defender of DOMA and the Arizona immigration crackdown, and foe of the health care law.) But that’s not even the point. If Romney does succeed Obama next year, he can get to finishing what Bush started: a full-scale conservative revolution on the federal bench that, at the end of the day, will have suffered only a brief intermission at the hands of the current president.
What Would Mitt Do?
Conservatives know that one surefire way for a president to craft a lasting legacy is through judicial appointments—particularly at the U.S. Supreme Court level. And if Mitt Romney, the presumptive Republican nominee, beats out President Barack Obama next fall, he could have a spot or two to fill on the bench, since four justices—Ruth Bader Ginsburg, Stephen Breyer, Anthony Kennedy, and Antonin Scalia—will be 74 or older come January.
Among the names that are being bandied about as potential Romney picks, former Bush solicitor general Paul Clement is the presumed front-runner. Fast on Clement’s heels is Viet Dinh, a law partner of Clement’s at Bancroft and a former U.S. Department of Justice official. Some of the other, oft-mentioned names are Miguel Estrada, who was blocked from an appeals court appointment by Senate Democrats in 2003; Jeffrey Sutton on the Sixth Circuit; über-conservative Diane Sykes on the Seventh; Michael McConnell, former Tenth Circuit judge and currently the director of the Constitutional Law Center at Stanford Law School; and Brett Kavanaugh, the former Ken Starr aide, on the D.C. Circuit.
Paul Clement: former U.S.solicitor general and current Bancroft partner
Viet Dinh: former Justice Department official and current Bancroft partner
Diane Sykes: Seventh Circuit
Brett Kavanaugh: D.C. Circuit
Michael McConnell: Former Tenth Circuit judge
Miguel Estrada: Gibson, Dunn & Crutcher partner
Jeffrey Sutton: Sixth Circuit