To leave a liberal legacy in the courts, Obama must imitate the GOP

The successful Republican filibuster of Goodwin Liu to sit on the US Court of Appeals represents the most high-profile defeat of a judicial nomination since President Obama took office. While the GOP’s obstructionism further demonstrates the hopeless logjam over the courts, Liu’s fate – he withdrew his nomination today – also highlights Mr. Obama’s own flawed approach to nominations.

In few areas should President Obama’s record be more dispiriting to liberals than in the judiciary, as Obama has nominated, with few exceptions like Liu, a string of older jurists, undermining Democratic efforts to provide balance to a federal court system now dominated by conservatives, and failing to set the groundwork for a lasting legacy.

That Senate Republicans have blocked many of the president’s nominees since 2009 is a surprise to no one who follows the process. To be fair, Democrats filibustered a handful of President Bush’s nominees for political reasons, but Republicans have gone much further. Scores of mostly uncontroversial nominees have languished, many ultimately easily confirmed after months of delay, illustrating the cynicism of the GOP’s behavior.

IN PICTURES: Supreme Court justices with no prior judicial experience

A former law professor, the president was expected to be engaged in court issues more than any of his modern predecessors. Instead, Obama has given no speeches and made virtually no comments on the judicial crisis. This stands in stark contrast to President Bush, who made it one of his signature issues.

Grassroots pressure

While it is foolish to believe that Obama could fix Republican opposition with a handful of speeches, his highlighting of the issue would at least bring wider coverage to the judiciary and build more grassroots pressure among Democrats.

Furthermore, Obama has made far fewer nominations than Bush by mid-2003, but this isn’t necessarily because of a lack of interest; rather, Bush had scores of extra open judgeships to fill upon entering office after Senate Republicans had completely blocked dozens of Democratic nominees in the last few years of Bill Clinton’s presidency. Obama did not have the same luxury of vacancies in 2009. (Though, currently, there are 86 openings on the district and circuit courts, a ten percent vacancy rate.)

Still, the president’s lack of aggressiveness is ill-conceived, as evidenced by whom Obama has been nominating to the all-important US courts of appeal.

Tale of the tape

As of mid-May, Obama had made 30 nominations to the circuit courts. Of those, just seven were age 50 or younger, and the average age of all his nominees was 54. By way of comparison, Bush had made 43 nominations to the appeals courts at a similar point in his presidency. And 21 of them were 50 or underleading to an average age of just 50 overall.

These differences are important given the power of the circuit courts. Because the Supreme Court hears a tiny fraction of all appeals it receives, the 13 circuits often issue the last word in important cases involving environmental protection, worker’s rights, criminal procedure, and other areas. In some ways, they wield greater practical power than the nine high-court justices.

Republicans have had a simple strategy when it comes to judicial appointments: go young. That Bush tapped so many young judges for such high posts mirrored similar moves by both his father and Ronald Reagan who installed dozens of judges in their early 40s and even their 30s. Democrats have gone in the other direction, both under Obama, as well as Clinton, whose circuit appointees averaged 53 years old.

The broader Republican strategy accomplishes two key ends. First, circuit panels dominated by young right-wing jurists have helped skew the courts to the right for decades.

Second, future Republican Presidents will have a long menu of judges to choose from for potential elevation. Just 39 when nominated, Liu is by far Obama’s youngest circuit nominee. And just as Democrats viewed Miguel Estrada – the conservative appeals-court nominee they successfully filibustered in 2003 – as a future Supreme Court nominee, so too do Republicans with Liu, the critical factor that doomed his chances. But whereas President Bush proffered numerous other young judges – including, most notably, John Roberts – Obama has not tapped more nominees near Liu’s age.

After eight years of Republican dominance, Democrats returned to power in 2009 in desperate need of restocking the courts with liberal-minded judges. The nomination of so few circuit judges under 50 is a telling statement of the administration’s short-sighted failure to understand how best to influence the courts long-term.

Exhibit A: Clarence Thomas

This approach transcends the usual ideological fights that have been so pervasive. Creating a lasting imprint and a legacy requires time, confirming men and women who will be able to serve on the bench for over a generation. No better example of this exists than Clarence Thomas, who is only 61 despite being on the Supreme Court for nearly two decades.

By appointing so many older nominees, Obama is hindering his opportunity to remake the judiciary, an issue of profound importance for the next generation. Obama can begin to make a better mark on the courts by focusing on age and nominating more folks on the sunnier side of 50. It would make an enormous difference.

Mark Greenbaum is an attorney and freelance writer in Washington.

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