Jennifer Bendery
Republicans cannot wait to begin dismantling President Barack Obama’s accomplishments, but there’s one thing they can’t undo, even with full control of Congress and the White House: his judicial legacy.
Obama will leave office with 329 of his judicial nominees confirmed to lifetime posts on federal courts. That includes two U.S. Supreme Court justices and four judges on the D.C. Circuit Court of Appeals, the two most powerful courts in the nation. Because of Obama, Democratic appointees now have a 7-4 advantage on the D.C. panel, and those judges will play a major role in deciding cases during the Trump administration related to environmental regulations, health care, national security, consumer protections and challenges to executive orders.
Obama also tilted the partisan makeup of circuit courts. Nine of the country’s 13 appeals courts now have majority Democratic appointees, compared with just one when he took office in 2009.
There is a caveat to his judicial success, however: When Republicans regained the Senate majority two years ago, they ground judicial confirmations to a halt. That has left 86 district court vacancies and 17 circuit court vacancies for President-elect Donald Trump to fill. That’s a huge number of court seats to fall victim to partisan politics. For some context: Obama inherited 59 district and circuit court vacancies when he became president. Trump is inheriting 103.
GOP senators, led by Majority Leader Mitch McConnell, devoted the last two years to slow-walking or outright blocking Obama’s court picks, with the goal of holding the seats open for a future GOP president, who is now Trump, to fill. They dragged out scheduling Judiciary Committee hearings. If a nominee did get a hearing, he or she would typically wait weeks before getting a committee vote ― which was often unanimous, despite the delays. For nominees who made it to the Senate floor, they often waited months for a confirmation vote, if they got one at all.
In the end, Republicans confirmed 22 of Obama’s judicial picks during his last two years. By contrast, when George W. Bush was president and Democrats controlled the Senate, they confirmed 68 of his judicial nominees in that period.
“The pernicious dynamics that pervade the Supreme Court and appellate processes have now even infected the district process, creating a judicial vacancy crisis,” said Carl Tobias, a law professor at the University of Richmond and an expert on federal judicial selection.
There were 25 district and circuit court nominees ready to be confirmed when the Senate adjourned its congressional session this month and gaveled in a new session. Nearly all had strong bipartisan support, and McConnell could have confirmed them in minutes by scheduling votes for them. Instead, he let their nominations expire. Trump will now have a say in who replaces them.
The Senate’s inaction has hurt the nation’s courts. Judges have struggled with burnout, and people’s cases can get backlogged for years. There’s been a spike in judicial emergencies, which is when a court is so overburdened it can barely function. Still, the biggest losers are everyday people seeking justice in court, whether it’s someone suing for being discriminated against at work or a small-business owner taking on a big corporation for violating antitrust laws.
“While the GOP leaders of the Senate are congratulating themselves for putting politics ahead of the Constitution, they should realize that on their watch judicial emergencies multiplied across the U.S. and many more Americans were denied access to justice,” said Nan Aron, president of the Alliance for Justice, a progressive advocacy group focused on the judiciary.
President Barack Obama appointed two U.S. Supreme Court justices, including Sonia Sotomayor, and four D.C. Circuit Court judges. Those appointments alone will shape major legal decisions for decades.
The GOP’s biggest coup, still, was preventing Obama from filling a Supreme Court seat after Justice Antonin Scalia died in February. An hour after Scalia’s death, McConnell announced that he wouldn’t let Obama fill the seat. He argued that, because Obama had only a year left in office, the next president should get to fill it. Other GOP senators echoed his logic. It was an unprecedented level of obstruction directed at a sitting president, but it worked: Nearly a year later, the Supreme Court seat sits empty for an incoming Republican president to fill, which is precisely what McConnell was hoping for.
As shrewd as McConnell’s politics have been, though, he can’t erase the imprint Obama has made on the federal bench. It even looks different now. For the first time, the majority of appeals court judges are women and minorities. Seven states have their first female circuit court judge, and five have their first African-American federal judge. Obama put more Latino, Asian-American and LGBT judges on federal courts than any previous president. The nation got its first Native American female federal judge on his watch.
“Obama has shattered all records for appointing diverse judges in terms of ethnicity, gender and sexual orientation,” said Tobias. “Forty-two percent of his appointees are women. He also appointed more Asian-Americans in his tenure than all other presidents combined and 10 times as many LGBT judges as any other president.”
His judges are already changing the legal terrain.
Last February, an Obama appointee on a federal appeals court in Georgia swayed a vote to reject challenges to the Affordable Care Act that would have allowed religious organizations to opt out of health care coverage. In February 2015, U.S. District Judge Carlton Reeves, an Obama appointee who became the second African-American federal judge in Mississippi, gave a powerful speech to three young white men before sentencing them for beating and killing a black man while yelling, “White power!” A federal appeals court in Virginia ruled in April 2016 that a transgender high school student who was born female could sue his school board for discrimination after the school barred him from using the boys’ bathroom.
And in December 2013, an Obama appointee on a Utah district court became the first federal judge to strike down a state’s constitutional ban on same-sex marriage.
Obama administration officials are proud of their legacy.
“President Obama’s judges have broken barriers across the nation, reshaping the federal judiciary to look more like America by vastly expanding the gender, racial, sexual orientation and experiential diversity of the men and women who enforce our laws and deliver justice,” said White House spokesman Eric Schultz.
Obama’s total number of judicial appointments is on par with past presidents. He got 329 judges in eight years, compared to Bush’s 327 judges and Bill Clinton’s 373 judges. But the key difference for Obama is that he’s leaving office with far more vacancies than his predecessors.
In addition to having more court seats to fill and his party controlling the Senate, Trump has another advantage to confirming judges. Democrats unilaterally changed Senate rules in 2013 to make it easier to confirm judges after the GOP routinely blocked Obama’s nominees. Republicans can now use that rule to their advantage.
