President Obama has answered Democrats’ calls for a federal judiciary that looks more like America. As of April he had named more black, Hispanic, Asian, and openly gay judges, as well as more women, than any of his predecessors. And after a slow start in making judicial nominations and years of Republican obstruction, he surpassed the number of federal judges George W. Bush had appointed at the same point in his presidency—thanks in part to a rule Senate Democrats pushed through last year that ended use of the filibuster to block nominees. Obama has filled 238 federal court seats, and Democratic appointees now make up the majority of active-status jurists on 9 of the 13 U.S. appeals courts, vs. one when he took office.
Yet some Democratic activists, while praising the president’s diversity efforts, have a new complaint: His picks for the federal bench aren’t liberal enough. These critics are encouraging the president to appoint nominees who will tilt the ideological balance of the federal bench to the left—offsetting the hundreds of young, conservative judges Bush picked over eight years.
Massachusetts Senator Elizabeth Warren, a star of the Democratic party’s liberal wing, has scolded the president for appointing too many judges with links to business. According to a February analysis by the Alliance for Justice, a coalition of environmental, consumer, civil rights, and women’s groups, 70 percent of Obama’s judicial nominees are former corporate attorneys. “There is an intense fight going on right now about what our federal bench will look like,” Warren said at a February meeting of the group. “Will it be a neutral forum that faithfully interprets the law and dispenses fair and impartial justice? Or will we see corporate capture of the federal courts with the courts transformed into just one more rigged game?”
Democratic Representative John Lewis of Georgia is among several congressmen who want to block two Obama nominees to district courts in that state. One, Michael Boggs, a Georgia appellate judge, sponsored antiabortion legislation as a Democratic legislator. Mark Cohen, a former state Democratic official, defended Georgia’s voter ID law, which civil rights groups have criticized as an attempt to suppress minority voting. Lewis and other Democrats say Boggs and Cohen are too conservative. That’s not an accident: Obama nominated them as part of a deal with Georgia’s two Republican senators, who agreed to stop standing in the way of Jill Pryor, the president’s pick for a U.S. appellate court.
“What’s been lost is the opportunity to have greater voices in the judiciary who articulate and enforce a more progressive vision of constitutional law,” says Geoffrey Stone, a former University of Chicago Law School dean who recruited Obama to teach law two decades ago. That’s likely to result in incremental rather than sweeping rulings from Obama-appointed judges on questions such as same-sex marriage and gun regulation, he says. Obama’s critics on the left say time may be running out for the president to change the ideological makeup of the federal judiciary by filling vacancies. If Republicans win control of the Senate in November’s midterm elections, it will become far harder for the president to push through liberal nominees.
Chris Coons, a Delaware Democrat who sits on the Senate Judiciary Committee, says the administration and his committee colleagues have “done the best they could” given “Republican obstruction.” The party’s focus, he says, should be on “highly qualified nominees” rather than “matching the Bush administration’s ideological fervor.” White House Counsel Kathryn Ruemmler, who oversees the administration’s judicial picks, is working quickly to send nominees to the Senate before fall. Democrats who hope to see scores of unabashed liberals on the list may be disappointed. Even without the power to filibuster, Republicans can employ several tactics to hold up Obama’s nominees, including invoking a rule that allows senators to block nominees to courts in their states. The president appears to be attempting to steer clear of nominees who will immediately trigger Republican protests that will gum up the works.
Ruemmler puts this concession to political reality in loftier terms, saying Obama doesn’t think packing the courts with left-leaning judges is the most effective way to influence the direction of the law. “Being able to persuade your colleagues and having the power to build consensus” is what matters to him, she says. “Part of that is being viewed by your peers and fellow judges as fair-minded and reasonable.”