If the federal judiciary continues to spew incomprehensible decisions based on political correctness and emotion — rather than the Constitution — for decades into the future, we’ll know why. The latest Bloomberg Businessweek highlights liberals’ efforts to stack the judicial deck during President Obama’s remaining 2 1/2 years in office. What might surprise you is that the liberal activists believe the Obama administration has been too conservative with its nominations.
President Obama has answered Democrats’ calls for a federal judiciary that looks more like America. As of April he had named more black, Hispanic, Asian, and openly gay judges, as well as more women, than any of his predecessors. And after a slow start in making judicial nominations and years of Republican obstruction, he surpassed the number of federal judges George W. Bush had appointed at the same point in his presidency—thanks in part to a rule Senate Democrats pushed through last year that ended use of the filibuster to block nominees. Obama has filled 238 federal court seats, and Democratic appointees now make up the majority of active-status jurists on 9 of the 13 U.S. appeals courts, vs. one when he took office.
Yet some Democratic activists, while praising the president’s diversity efforts, have a new complaint: His picks for the federal bench aren’t liberal enough. These critics are encouraging the president to appoint nominees who will tilt the ideological balance of the federal bench to the left—offsetting the hundreds of young, conservative judges Bush picked over eight years. …
… “What’s been lost is the opportunity to have greater voices in the judiciary who articulate and enforce a more progressive vision of constitutional law,” says Geoffrey Stone, a former University of Chicago Law School dean who recruited Obama to teach law two decades ago. That’s likely to result in incremental rather than sweeping rulings from Obama-appointed judges on questions such as same-sex marriage and gun regulation, he says. Obama’s critics on the left say time may be running out for the president to change the ideological makeup of the federal judiciary by filling vacancies. If Republicans win control of the Senate in November’s midterm elections, it will become far harder for the president to push through liberal nominees.
Chris Coons, a Delaware Democrat who sits on the Senate Judiciary Committee, says the administration and his committee colleagues have “done the best they could” given “Republican obstruction.” The party’s focus, he says, should be on “highly qualified nominees” rather than “matching the Bush administration’s ideological fervor.” White House Counsel Kathryn Ruemmler, who oversees the administration’s judicial picks, is working quickly to send nominees to the Senate before fall.
One thing is clear: Clark Neily is unlikely to see the judicial engagement he prefers any time soon.