Obama's Second Term and the Federal Courts
McElroy, Lisa T., Cannan, John, Judicature
Many scholars and court watchers were surprised that the federal courts were not more of an issue in the recent presidential election. Some speculated that both parties wanted to keep the courts - particularly the Supreme Court - out of the news, perhaps to obscure the major opportunity that each party had, through nominations to the federal courts of appeals, to change the course of several important legal doctrines.
President Obama's first term judicial nomination initiatives were not as successful as many Democrats had hoped, for several reasons. First, the President was slow to nominate federal judges at all, despite the large number of vacancies at all levels on the federal courts.1 Second, the Republican caucus in the Senate took almost unprecedented steps - at least in combination - to prevent nominations from coming to the floor for a vote or to prevent their passage when they did. Third, many of the President's nominees to the Supreme Court and the federal courts of appeals were not as ideologically liberal as his predecessor's were conservative, causing some Democrats to complain of lost opportunities to balance ideological perspectives.
Still, Democrats viewed Obama's first term nominations as successful in at least two key ways. First, he nominated six judges to the geographically important Fourth Circuit, and transformed that court from a deeply conservative one to a much more liberal one. Second, he increased the diversity of the federal judiciary enormously, with about two-thirds of his nominees falling into the "non-traditional" category.
As President Obama enters his second term, most Democrats hope he will increase his judicial nomination activity and work with the Senate to move nominees successfully through the nomination process. Republicans, on the other hand, may continue to use Senate procedure to block or stall nominations.
In this paper, we describe the judicial nomination process, explain some of the hurdles the Obama administration encountered in the first term, suggest ways in which the administration could seek to overcome these hurdles in the four years ahead, and demonstrate why an aggressive judicial nomination agenda would result in doctrinal legal change.
The judicial nomination process
Article II, section 2, clause 2 of the U.S. Constitution sets the ground rules for judicial nominations, as it does with all other major appointments, through a cooperative process between the executive and legislative branches - the president selects a nominee whose confirmation is subject to the advice and consent of the Senate. The brevity of this instruction belies a process that has evolved over the past several decades to become complex political gamesmanship.2 President Obama's first term was no exception.
The hallmarks of the modern presidential role in judicial appointments are the selection, vetting, and evaluation of federal judicial nominees. Aside from the President, the leading players are the White House counsel's office and the Department of Justice's Office of Legal Policy (OLP), with the former playing an increasingly dominant role.3 Certain members of the legislature can also exert influence during the nomination stage. Under the tradition of senatorial courtesy, the executive branch affords senators some say in the nomination of federal district and circuit court judges from their home states, even when the president and the senators are from different political parties. For example, President George H. W. Bush, a Republican, appointed Sonia Sotomayor to the U.S. District Court for the Southern District of New York at the suggestion of then New York Senator Daniel Patrick Moynihan, a Democrat. Senatorial courtesy is a "practice or unwritten rule" not a law.4 However, as the Senate Judiciary Committee's blue slip policy outlined below will show, violating courtesy can present an unwanted and avoidable obstacle to confirmation.
How these players - the president, the White House counsel, OLP and home state Senators - come together in a presidency determines how easily nominations can be delivered for action in the Senate. …