an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What Types of Judicial Nominees Can We Expect from Obama?
If history is any indicator, we can expect President Barack Obama to announce his first slate of judicial appointments no later than June of this year, and probably sooner. Indeed, President George W. Bush announced his first group of eleven circuit court appointees on May 9, 2001, just before he reached the fourth month of his first term in office. The annual speculation over Supreme Court appointments has already begun in earnest, but there has been little discussion about what type of district and circuit court nominees we can expect from President Obama. Perhaps Obama's early cabinet appointees provide some window into his thinking on the subject, but existing research suggests that his first slate of nominees will likely tell us how much political capital he is willing to expend on judicial nominees.
Of course, President Obama is facing unprecedented challenges, both domestically and abroad. One possibility is that these policy challenges will prove so overwhelming that senators, interest groups, and the American people will pay little attention to his judicial nominees, leaving him largely unconstrained in his choices. Given the intense (and increased) participation by organized interest groups in judicial appointments over the last two decades, I find that possibility unlikely. (For a good source on the increasing role of organized interest groups in federal judicial appointments, I recommend Nancy Scherer's book, Scoring Points: Politicians, Political Activists, and the Lower Court Appointments Process.) Far more realistically, Obama will be required to expend so much political capital dealing with domestic and foreign policy challenges that he may make a conscious decision to moderate his judicial nominees for fear of a backlash from Congressional Republicans and organized interest groups. Both possibilities have their drawbacks and advantages.
Academic research, meanwhile, would suggest that Obama is relatively unconstrained in his selection of judicial nominees, though admittedly the current political environment perhaps makes such research less applicable as I explain above. Unsurprisingly, the single greatest constraint on strategic selection of judicial nominees is a Senate controlled by the opposite party. Of course, Obama has at least 58 Democrat votes in the Senate, and possibly 59 if Al Franken is seated. Empirical research suggests that divided government not only reduces the confirmation rate for judicial nominees, but it lengthens the amount of time to confirmation for those nominees that are ultimately successful. So empirically speaking, we can expect a high success rate and quick confirmations for Obama's judicial nominees if we do not take into account the current domestic and foreign policy challenges. The preferences of the 60th Senator, or the filibuster pivot, have also been shown to be important, but if Al Franken is seated, it seems unlikely that a filibuster could be maintained without at least a Democratic Senator or two joining in the effort. Moreover, low approval ratings and the approach of end of a President's term in office have historically been impediments to the confirmation of judicial nominees, but Obama currently has very high approval ratings and has just began his first term in office. Although there are several other factors for Obama to consider, such as the criticality of a nomination to a particular court (i.e., does it swing the ideological balance of a Court, it is an opposite-party replacement, etc.?), the literature suggests that Obama should be successful if he picks highly-qualified nominees to fill vacancies in the lower federal courts. (Fellow Balkinization blogger Lee Epstein has written about the strategy of picking highly-qualified nominees, particularly for the Supreme Court.) Of course, the home-state senators for a judicial vacancy are vital given the blue-slip process, but without knowing which vacancies Obama will seek to fill in that initial slate, it is very difficult to assess that variable here.
All of this is to say that, though I obviously have no inside knowledge of who Obama will select, it will be very interesting to see whether Obama makes ideologically-motivated selections in his first slate of judicial nominees or whether he moderates his choices in order to save capital for his preferred policy initiatives, some of which are already in peril if the current economic crisis persists throughout his presidency. It seems like a difficult choice, but my best bet is that Obama will try to choose a middle ground so as to not anger his own liberal base or mobilize conservative interest groups, perhaps interspersing some ideologically moderate nominees with liberal ones. But like others, I am anxiously awaiting that first slate of judicial nominees to get an initial glimpse of whether Obama will make the federal judiciary one of his top priorities.