Federal Courts and Nominations

Obama’s Early Judicial Picks Reflect Caution

For all the speculation surrounding President Obama’s choice to replace Justice David Souter on the Supreme Court, there’s been less attention paid to the judges he’s already nominated to lower courts. In his first 100 days, Obama put up three federal court of appeals nominations. And, while the circuit courts lack the glamour of the Supremes, Obama’s picks so far offer one of the few guides on how he wants to shape the court system.

David Hamilton, Obama’s first judicial nominee, was nominated on March 17 to sit on the U.S. 7th Circuit Court of Appeals. Though he has faced criticism from conservative groups, his nomination has advanced steadily through the Senate so far. The other two, Gerard Lynch for the 2nd Circuit and Andre Davis for the 4th Circuit, were announced April 2, with far less outcry.

“The first nominee is always going to be subject to the greatest scrutiny,” said Doug Kendall, president of the progressive Constitutional Accountability Center.

Obama’s low-key approach so far is in keeping with his picks, whom legal experts describe using words such as “safe,” “cautious,” “careful” and “moderate.”

“You would have to describe them as fairly cautious choices,” Kendall said. “He has nominated three sitting federal judges who have a decade or more experience on the federal bench…. There won’t be a huge fight over their confirmations.”

“Hamilton has a more liberal view of the judicial role than I do,” said Geoffrey Slaughter, a prominent conservative lawyer in Indianapolis. “But that doesn’t mean he’s outside the mainstream. He’s well within the judicial mainstream.” He added, “There is no doubt that he is a thoughtful, careful and elegant writer.”

Are these choices emblematic of the judges Obama will choose? It’s too soon to tell, experts say. But they may give some insight into his approach. Carl Tobias, a law professor at University of Richmond, said that the president’s early nominations show how strategically he is thinking about his choices. All three have been approved by the Senate once before, so they can move through the confirmation process more quickly, with fewer background checks by the American Bar Association. “This makes a lot of sense given all that has to be done in light of the Supreme Court nomination, which is pending and will consume a lot of time,” Tobias said.

The ABA checks can be a point of contention, however. Among the criticism coming from the right was the fact that the ABA declared Hamilton not qualified to serve as a U.S. District judge when President Clinton nominated him in 1994. Now, though, the ABA rules him “qualified.” (Hamilton’s lack of experience at the time was the ABA’s primary reason for the 1994 rating.)

Hamilton’s rulings in two particular cases have also rankled those on the right. In one, he ruled against prayer in government assemblies, and in another he struck down part of a state law that required abortion clinics to give women information about alternatives to abortion. But his record doesn’t appear to be provocative enough to rally serious conservative resistance — Hamilton is supported by both his senators, Republican Richard Lugar and Democrat Evan Bayh.
One quality obviously lacking in Obama’s early appointments is gender diversity. All three are male district judges. (Both Lynch and Hamilton are white and went to Ivy League schools. Davis is African American and graduated from University of Maryland’s law school.)
Tobias doesn’t see this as anything to worry about, since it’s still early in the process. He noted that rumors are swirling about Obama appointing a woman for the 9th Circuit. Kendall said the fact that Obama played it safe with his first three nominations does not mean he will do so for the country’s highest court. “The first real test as to how aggressive this administration is going to be in terms of putting brilliant and fearless judges on the bench is going to come with the Souter vacancy,” Kendall said.

At the very least, Obama has saved himself some potential grief by starting with noncontroversial choices. “These particular nominations don’t provide a particularly fruitful target for [critics] because they have excellent reputations,” said William Marshall, former deputy White House counsel in the Clinton administration.

“There’s not a window to attack.”


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