Federal Courts and Nominations

In the post-nuclear landscape, uncharted terrain

By Josh Gerstein


Liberals are hoping President Barack Obama uses the dramatic Senate rules change Thursday to put more sharply left-leaning lawyers on the federal bench — but the jury’s still out on whether there will be any big shift in the president’s future picks.


“People who are extremely qualified but Republicans found too progressive could now move,” said William Yeomans, who served as Senate Judiciary Committee counsel under Sen. Ted Kennedy (D-Mass.) “We face electoral uncertainty in 2014 and 2016, but for the next year there are no significant impediments, so it will be important for the White House to take this period very seriously, and I think they will.”


“Now Obama is certainly free to do it,” liberal University of Chicago law professor Geoff Stone said of the possibility for some edgier judicial selections from Obama. “I personally hope he does because I think the federal bench is really tilted. Whether he will or not, I have no idea.”


Some conservative legal activists say they expect — and fear — that Obama will begin pushing more liberal nominees now that he no longer has to worry about the potential for a filibuster, after Senate Democrats cast aside GOP objections and altered Senate rules to end the right to filibuster executive branch nominations and nominations for judicial posts other than the Supreme Court.


Much of the power conservative activists had in recent years came from the threat of a filibuster, said Curt Levey of the Committee for Justice — and that the impact was felt far beyond the judges directly in dispute.


“The conclusion we all reached was, while we would only try to stop the worst nominees and only stop a few, the real effect is to moderate Obama’s picks because he knows real ideologues … can be stopped and he’s going to moderate himself,” Levey said. “Now, that’s gone.”


Levey said the filibuster talk also attracted media attention that he fears will now drop away. “Without the filibuster and a credible threat of stopping these nominees, you guys are not going to even want to talk about it,” he told POLITICO.


Asked about specific nominees Obama might put forward with his newfound flexibility, several liberal and conservative court-watchers pointed to the possibility that he might revive the nomination of former University of California-Berkeley law professor Goodwin Liu to the 9th Circuit.


Obama put Liu forward for a 9th Circuit judgeship in 2010, but the nominee was painted as a liberal ideologue by Republicans. In a May 2011 cloture vote, Liu got only 52 votes, more than the majority he would need under the new Senate practice, but well short of the 60 that would have been needed in the face of a Republican filibuster.


“It seems to me Goodwin Liu could become a federal judge now,” said Yeomans, a professor at American University’s law school.


Re-nominating Liu, now a California Supreme Court justice, “would be in-your-face, kind of a ‘You did it to me and I’m not going to let you get away with it,’” said Harvard law professor Mark Tushnet. “I don’t know if [the president] would want to have that fight again or be able to win it.”


Also mentioned as a newly viable circuit court nominee: Stanford law professor Pam Karlan, who was on many liberals’ Supreme Court wish lists, but was certain to face intense GOP opposition.


“She’s a really extraordinary lawyer, who’d be a marvelous judge, who never got the consideration she deserved because the White House knew Republicans would fight her,” Yeomans said. “People like that should be in play.”


Court-watchers also said they wouldn’t be surprised if Obama looked for a new judicial slot for another nominee who ran into a GOP filibuster, Caitlin Halligan. A former prosecutor, she is not considered particularly liberal, but her nomination to the D.C. Circuit was stuck for more than two years before she failed in a 51-41 cloture vote in March. There is no obvious circuit court spot for her at the moment: Obama has named new nominees for all the current D.C. circuit vacancies and there are none currently on the 2nd Circuit, which covers her home state of New York.


While some liberals and conservatives may have visions of a looming slate of dyed-in-the-wool Obama liberal nominees, few students of the president’s nominating record expect him to make a bold move to try to reshape the federal bench.


Stone said he doesn’t expect Obama to capitalize on the so-called nuclear option by quickly nominating a slate of liberals.


“It’s not his style to take advantage of this by stuffing it down the throat of Republicans and suddenly jamming them with 20 liberal judges. Lyndon Johnson might have done that, but that’s not Obama’s style,” Stone said.


“I don’t think the White House will nominate a steady diet of real progressives, but it does seem to me a chance to put some real superstars on the bench,” Yeomans added.


Liberal activists have long railed against Republicans’ use of the filibuster to block Obama’s nominees — but left-leaning law professors have also long been critical of the president’s approach to judicial nominations, especially those early in his presidency. Those critics say he was too slow to make nominations, and too timid about naming outspokenly liberal attorneys.


Many Democrats have praised Obama for the diversity of his picks — which have included African-Americans, Asian-Americans and Latinos — but liberal lawyers have faulted him for not doing enough to counter the influence of his Republican predecessors by focusing on getting young, progressive legal thinkers onto the bench. That criticism has abated somewhat this year, as the White House and Obama made a stronger push to get his nominees onto the pivotal D.C. Circuit.


While there’s no doubt that the Senate dropping what had become an effective 60-vote requirement for controversial judges will give Obama some more latitude to nominate some edgier figures, important limits on the president’s power will remain.


The Senate’s current 55-45 split means that Obama can lose only five Democrats or independent senators for any nominee who can’t get any GOP support. Conservative Democratic senators have sometimes parted company with the president on judicial nominees, such as when then-Sen. Ben Nelson of Nebraska voted against cloture for 9th Circuit nominee Goodwin Liu in 2011.


Potential wobbly red-state Democrats would include Sen. Joe Manchin of West Virginia, who voted against deploying the nuclear option Thursday, as well as Sens. Mark Pryor of Arkansas, Mary Landrieu of Louisiana, Kay Hagan of North Carolina and Mark Begich of Alaska, confirmation-watchers said.


“I don’t know how much appetite some red and purple state senators are going to have for some of the radical nominees,” said Carrie Severino of the conservative Judicial Crisis Network. She noted that her group has already run ads targeting Pryor, who is up for reelection next year, over his past votes for Obama judicial nominees.


Severino said she believes Obama is so politically beleaguered at the moment that he’s unlikely to try to push potentially controversial judges. “He hasn’t made that a huge focus up until now,” she said. “With the party taking so many hits on Obamacare already … and his approval rating plummeting, he’s not going to have a mandate to do that.”


Still, under the new Senate procedure, Obama could lose all five red-state Democratic senators mentioned along with every GOP senator and still squeak an edgy nominee across the finish line.


But a more significant restraint on Obama’s choice of nominees may be the Senate Judiciary Committee’s “blue slip” policy. In its current incarnation, the policy requires the consent of both senators from a potential judicial nominee’s state before the panel will take up a nomination. In practice, Obama has only put forward nominees who have such approval and has involved senators in searches for candidates for the bench.


The Senate’s blue slip policy means Republican senators can veto all potential federal judicial nominees in their state or taking one of their state’s traditional seats on a circuit court. It has also led to deals in which Obama packages a centrist nominee favored by a GOP senator with a more liberal one liked by Democrats.


Liberal and conservative legal activists also noted Thursday that if the change to the Senate rules is permanent, it could work to the benefit of a Republican president in the future, giving him more ability to appoint edgier conservative judges if Republicans have narrow control of the Senate.


“There’s a huge flip side to it,” said Doug Kendall of the liberal Constitutional Accountability Center, a supporter of ending filibusters of district and circuit court nominees. “It played out as a very partisan move, but the reality is that this is something every president will benefit from.”


“When the shoe is on the other foot, I can also see Republicans not having to deal with things like Miguel Estrada getting blocked,” Severino said. “We would have a Judge Estrada, and might have a Justice Estrada by now.”


However, Levey said he feared Obama having nearly free rein for the next one to three years, while the opportunity for Republicans to capitalize on the change is relatively remote.


“I’m not, to be honest with you, too excited about that,” Levey said. “I think over the next three years, this is really going to be bad.”


The conservative activist also worries that, while Democrats have promised to keep the current filibuster rule for Supreme Court nominations, that pledge could fall by the wayside too if Obama gets a chance to pick another justice.


“It may be disastrous if there’s another Supreme Court nominee. In that case there will really be no check” on Obama’s power, Levey said.

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