While I can appreciate the outpouring of joy in the wake of President-elect Barack Obama’s historic win, I was struck by how many people were talking as if they were now living in the land of milk and honey, where dogs and cats and Keith Olbermann and Bill O’Reilly all get along. Change is certainly coming, but it’s not all going to be inevitable and unstoppable. At some point the courts are going to stop some initiative — or at least slow it down.
That should be a sobering thought for Obama’s supporters — and one piece of encouragement for Republicans.
Don’t get me wrong. As president, Obama, armed with a strong election mandate and solid Democratic majorities in the U.S. Senate and House of Representatives, is going to be in a position to get a number of things done right away. There is clearly going to be a change in philosophy and approach, particularly when it comes to regulation, on many levels within the government.
But with change come challenges to that change. That’s where the courts step in. Given the creative nature lawyers have to get almost any issue into court and barring 100 percent clear-cut language and Constitution-proof legislation, those challenges are going to be scrutinized by a federal judiciary that has been dominated by Republican presidents.
According to a Brookings Institution report, 56 percent of the 179 circuit court judges have been appointed by a Republican, versus 36 percent who have been appointed by a Democrat (about 8 percent of those positions are vacant).
When you take into account that Republicans have been appointing federal judges 20 out of the last 28 years, you have to assume that the majority of the 678 district court judges have been appointed by Republicans as well.
According to the Senate Judiciary Committee’s Web site, President Bush has had 322 of his federal judge nominees (not counting the Supreme Court or trade court) confirmed. By my math, that means Bush has appointed roughly 37 percent of the 857 district court and circuit judges on the bench today.
Those numbers could present Obama with some challenging obstacles.
I don’t assume that, because a judge has been appointed by a president of a particular party, he or she is going to consistently rule along party lines. But let’s not be naive. There are a whole host of judges out there who are going to be more than willing to carefully scrutinize major changes to the law.
The potential tension between the president and Congress and the judiciary isn’t surprising. The political pendulum swings a lot faster for the other two branches of government than it does for the judiciary.
And when you think about it, that’s not necessarily a bad thing.
I spoke with University of Pennsylvania Law School Professor Stephen Burbank, who has written extensively about judicial independence and accountability, and he was kind enough to remind me that the framers of the Constitution were always concerned by checks and balances.
"This is not a cause for any distress [that change might] be held up," he said.
As he explained to me, we have a "politically front-end loaded" system for picking federal judges.
"The reason we have the system we do is because we recognize different presidents are going to want different judges," Burbank said.
However, he added that he had "an abiding faith in judges to follow the law when the law is clear."
The problem, he said, is when the law isn’t clear. When the law is ambiguous, that’s when political and philosophical tendencies can arise.
Burbank referred to "strategic ambiguity," which he said happens when you have closely divided chambers and the parties purposely craft ambiguous language in order to reach compromise, but then have plausible deniability later on.
In that regard, as Burbank explained to me, Obama will have an advantage when dealing with the courts. With strong majorities, he’ll have the chance to get legislation passed that will be clear-cut enough to protect it against any judicial interpretation. For instance, he said that Obama and Congress will be in a position "to speak with one voice" in an area like pre-emption such that "the courts can’t screw it up."
Outside of ruling a law unconstitutional, the courts in a situation like that won’t have much wiggle room.
However, the other thing to remember is that with grand political change and strong leaders — and sometimes not so strong — there is the tendency to overreach. It’s happened before — hell, FDR tried to pack the Supreme Court — and it’s likely to happen again.
And when it does, the courts will be playing their proper role in pushing back. •
Hank Grezlak is the editor-in-chief of The Legal Intelligencer . He may be contacted at 215-557-2486, or by e-mail at email@example.com.