Tuesday, November 17, 2009

Should Obama Care About Judges?

Barry Friedman

The Obama Administration has been slow to fill federal judicial vacancies. This may be in keeping with the President’s view that social change should occur through the democratic process. But he should bear in mind that the long-term fate of social change often rests in the courts, which can step on – or ratify – the work of political movements.

The New York Times reported this weekend on the Obama Administration’s lethargic rate of judicial nominations. (Brian Tamanaha weighed in as well here on Balkinization.) In addition, key personnel in the White House counsel’s office responsible for such appointments are departing. And the Senate has yet to confirm Christopher Schroeder, the nominee for the head of the Office of Legal Policy, which also bears a large part of the burden of vetting judicial nominees.

One suspects that among the many issues this Administration must juggle, the judiciary is not a top priority. The Administration’s response to criticism about the pace of judicial appointments is that it is focusing on the confirmation rate, not the appointment rate. But it is no secret the President places his higher hopes on politics and the power of democratic change, rather than the sort of legal liberalism of the Warren Court years.

Still, the President would be wise to recognize – as I do in The Will of the People – that courts and social movements have a symbiotic relationship. To state the obvious, judges can use their power of judicial review, and their role as statutory interpreters, to wreck havoc with the handiwork of politics. Consider, for example, what the Supreme Court has done to the entire Guantanamo policy.

More important still, courts can ratify the work of political movements. The New Deal’s shift to national control of the economy took lasting hold because judges changed their entire interpretive approach to accommodate it. When judges buy into political change, such change becomes part of the very tissue of the law. In this way, political accomplishments persist long after their proponents have departed their elective offices.

When a President’s agenda is primarily domestic, as is Barack Obama’s, judicial allies are essential. Be it health care or the regulation of financial institutions, these regulatory changes ultimately will depend upon judges for their interpretation and implementation. A hostile judiciary can tear a regulatory regime to pieces; a favorable one can enshrine it.

Simply put, it is not an either-or proposition: judicial or political change. The two work in tandem. It’s both fine and appropriate to focus on the political. That’s where one’s legacy is made. But whether that legacy endures often depends, in the final analysis, on the courts.


His domestic policies are such that it is unlikely major aspects of it will be declared unconstitutional.

As to his ultimate legacy, if he deals with the vacancies in due time, the judges will in some fashion reflect those who appoint them.

It is not that he doesn't care at all.

I am quite surprised at Obama's passivity on this issue, as well as some others. He has 60 Democrats in the Senate and, on judges, it's hard to believe he can't beat a filibuster mounted by the GOP pretty much every time if he keeps nominees to the center-left.

Like jobs, an unwillingness to push Harry Reid to get the health care bill through the Senate sometime soon, and putting up with Geithner's coziness with the Wall Street bad guys, this issue shows, I think, that Obama is unsure of himself and not willing to have any real fights with the Republicans.

I am very disappointed in the administration's incredible slowness to nominate judges.

Yes, he should...

DUI Houston

Two comments. First, The Will of the People is just a terrific book. Second, perhaps the reason the Obama administration is not fixated on judges has to do with what the Democratic base is demanding (or not demanding). The Republican base has pushed for transformative judicial appointments as it is mobilized by social issues. It is quite clear that they want judges to play a key role in changing the law. The Democratic base is not as unhappy with the output of the Supreme Court as is the Republican base. The Democratic party is focused more on positive than negative rights which in our constitutional system is supplied by statutes. Given how close the vote will be in the Senate on health care, the administration may well think that it does not want to spend capital at this point on the judiciary.

E.J. Dionne's "The GOP's no-exit strategy" OpEd in today's WaPo (11/19/09) is right on mark on both health care and judicial appointments. The GOP will apply this strategy to just about everything Pres. Obama will try to do until Senate Democrats challenge GOP's threatened filibusters.

I'm on the bandwagon: I am frustrated by the slowness.

If the Dems lose substantially next time around, the one thing that they can leave us with is a raft of new judges. Anything else can and will be run aground.

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