Federal Courts and Nominations

President Obama: Court push is about process, not politics

By Josh Gerstein


To hear President Barack Obama tell it, the motives underlying his latest partisan fight have nothing to do with politics.


But there’s no question that the ideology of the courts, and of one particularly powerful court, are at the heart of the dispute.


The president used the huge megaphone of a Rose Garden event Tuesday to press the Senate — specifically, Senate Republicans — to confirm three new judicial nominees. But when it came to their judicial philosophy, or even their view on the proper role of the courts, he fell mute.


Senate Majority Leader Harry Reid and other Democrats have called for confirming additional judges to the D.C. Circuit in order to counter a Republican contingent on the court that has been “wreaking havoc” with rulings upending environmental regulations, anti-tobacco measures and presidential recess appointment powers that have been assumed for a couple of centuries.


“There is a crisis and we need to do something about it,” Reid said last month.


But Obama didn’t speak at all Tuesday about the court’s ideological outlook, or even about a search for balance. Instead, he highlighted the court’s workload and spoke of the president’s constitutional prerogative to name judges.


And he denounced Republicans for playing politics with their complaints that the nominations represented a political power grab. “I didn’t just wake up one day and say, ‘Let’s add three seats to the [D.C. Circuit] court of appeals,’” he said. “What I am doing today is my job. I need the Senate to do its job.”


Despite the president’s complaints about politics infecting the confirmation process, it’s beyond debate that his liberal supporters are eager to see more of his judges on the bench. Liberal activists are confident the addition of Obama appointees to the mix would temper the rulings of a court that, say some on the left, has been on a kind of conservative ideological crusade.


However, when asked Tuesday if concern about the direction of the influential court played into Obama’s decision to offer up a slate of three D.C. Circuit nominees, White House Press Secretary Jay Carney insisted that the driving factor was the largely logistical matter of making sure the court was firing on all cylinders.


“The president believes that this court, which is commonly referred to as the second highest court in the land, should be fully staffed,” Carney said.


But Republicans continued to paint the move as a partisan power grab. Senate Minority Leader Mitch McConnell said Tuesday that there’s a cloud hanging over the appointments, which he described as a “culture of intimidation” represented by the threat of a rules change to the Senate that would allow the Democrats to impose the “nuclear option” of allowing votes to pass by simple majority.


Reid, who praised the president’s picks as “really good” choices and said he wants to move quickly to get them confirmed to fill out the vacancies at the court, responded that if the minority party blocked any of the three judicial nominees, he would confront that challenge “when we get there” — though he declined to engage McConnell over the nuclear option.


With Republicans leveling charges that Obama is trying to “pack” the court with his judges, the president seemed to take pains Tuesday to stress his nominees’ qualifications and to downplay signs of their ideology.


Obama insisted that his latest nominees, Patricia Millett, Nina Pillard, and Robert Wilkins, are “highly qualified” and “incredibly accomplished lawyers.” He even drew some laughs when he exclaimed: “These are no hacks. These are no slouches.”


But in presenting his Supreme Court nominees, Obama hasn’t shied away from indicating that legal and intellectual skill was not, in his view, enough. In introducing Sonia Sotomayor, he spoke of the need for “experience being tested by obstacles and barriers, by hardship and misfortune….experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.”


In putting forward Elena Kagan, Obama lauded her “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.” He also saluted “her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”


Obama softpedaled those considerations Tuesday. He did note Pillard’s work for civil rights groups. And he observed that Wilkins, who’s now a district court judge, was once a public defender. As for Millett, the president noted that she’d served under both Democratic and Republican presidents in the solicitor general’s office — a fact which doesn’t shed much light on whether she’d align herself with the D.C. Circuit’s conservative majority or go in another direction.


“It’s a fine line that the White House is trying to draw, trying not to overly politicize the process or politicize it any more than necessary and at the same time select people who, perhaps, will take a different view,” said Carl Tobias, a University of Richmond law professor who has studied the confirmation wars.


Obama arguably alluded to the D.C. Circuit court’s more controversial rulings when he spoke of its judges often having a “final say on…everything from national security to environmental policy; from questions of campaign finance to workers’ rights.” But he never suggested his nominees might see those issues differently.


“Obviously, this court is important. The ideology or political philosophy of a judge who you name to this court has a big impact on whether government regulations get approved or not,” said Doug Kendall of the liberal Constitutional Accountability Center.


However, Kendall argued that Obama actually isn’t looking for assurances that his appointees are liberal — he’s simply willing to take a chance that they’re more moderate than the court’s George W. Bush, George H.W. Bush and Reagan appointees. With the recent confirmation of Obama nominee Sri Srinivasan, the court now has four GOP nominees and four Democratic appointees on its active bench, with five Republican appointees and one Democratic appointee in the stable of senior judges.


“Part of Obama’s confidence in nominating people without a particularly ideological record is he thinks as long as judges follow the law and don’t have an axe to grind, he can do fine,” said Kendall.


But Curt Levey of the conservative Committee for Justice said he suspects the White House is deliberately playing dumb about their nominees’ outlook and about the D.C. Circuit.


“Do they care about the ideological balance of the D.C. Circuit? I think they do,” he said. “I guess they can’t really say that because then they’re playing into Republican hands….That limits them as well.”


Levey also said liberals don’t need to worry much about Obama’s nominees, since nominees of Democratic presidents tend to be pretty reliable ideologically. Big surprises, he said, have usually come from Republican presidents’ picks who turned out to be less conservative than expected. “Over the years, Democratic presidents have delivered,” Levey said.


While many liberals were delighted with Obama’s event Tuesday, many have also wondered what took Obama so long to escalate the issue. His Rose Garden event putting political muscle behind three of his appellate court nominees came more than four years and four months into his presidency.


“Why is it five years in?” Tobias asked. “He’s been very understated about it.”


President George W. Bush, by contrast, waited only until May of his first year in office to take to the East Room to showcase 11 judicial nominees.


Bush also publicly ventured into judicial philosophy there a bit more than Obama seemed willing to Tuesday. “Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench,” Bush declared at the 2001 event.


Some said Obama apparently decide to wade into the issue more forcefully after D.C. Circuit nominee Caitlin Halligan withdrew in March following two-and-a-half years in limbo. Two different cloture votes were held, she got a majority in each but could not muster the needed 60 votes.


“I think the triggering event was Caitlin Halligan. He thought she was extremely well qualified and was unfairly treated,” Tobias said. “He can’t let go of that.”


Obama acknowledged Tuesday that part of what is happening is to some degree payback for Democrats obstructing Republican presidents’ nominees. But he stuck to his efficiency rationale, arguing that the real issue was that the slow pace of confirmations is impeding the operations of the courts.


“I recognize that neither party has a perfect track record here. Democrats weren’t completely blameless when I was in the Senate,” he said. “It has to stop.”

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