Michael Grunwald’s piece about Obama and the courts is very good. A couple of points are worth emphasizing. First, despite Obama being slow getting out of the blocks and unprecedented Republican obstruction, Obama has been able to transform the federal courts:
Ultimately, most of those battles over judges have really been about Obama, a nasty front in the larger partisan war that has raged throughout his presidency. And as with most of the foreign and domestic policy battles of the Obama era, the result, after a lot of bellicose rhetoric and political brinksmanship, has been a lot of change. Obama has already appointed 329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction. He got two left-leaning women onto the Court: Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general. He also flipped the partisan balance of the nation’s 13 courts of appeals; when he took office, only one had a majority of Democratic appointees, and now nine do. Just last week, two Obama appointees to the Fourth Circuit Court of Appeals struck down some of North Carolina’s strict new election law, calling it a discriminatory effort to stop blacks from voting.
With a 4-4 Supreme Court, Democrats taking over the circuits is a big deal (the recent victories on voting rights indeed being one obvious example.)
It’s also worth noting the role that Senate Democrats played in facilitating Republican obstructionism, which was often effective even during the six years in which Democrats controlled the chamber:
Vermont senator Patrick Leahy, who chaired the judiciary committee, made it clear he would honor the “blue slip” system that gave home-state senators a veto over potential nominees, so filling vacancies required cutting deals. In South Carolina, the White House accepted Republican senator Lindsey Graham’s recommendation to elevate a Bush district court appointee, Henry Floyd, to the Fourth Circuit appeals court. Floyd later issued decisions striking down Virginia’s ban on same-sex marriage and endorsing the right of transgender public school students to use the bathrooms of their choice. At the behest of Utah senator Orrin Hatch, Obama nominated a personal injury attorney named Robert Shelby to a district court. Christopher Kang, a former deputy White House counsel who vetted nominees, says he only learned Shelby was a registered Republican while reading news reports about his 2013 decision to strike down Utah’s same-sex marriage ban.
One thing too few people understand is how seriously many Democratic senators — and not just more conservative ones, but also some liberals like Leahy and Fiengold — took the Senate’s sclerotic procedural norms, including the ones Republicans were no longer adhering to. Leahy restoring the blue slip even though Hatch abandoned it when he controlled the Judiciary Committee and the next Republican in charge of the committee during a Republican administration will do the same, is a classic example. And this is why it took such an agonizingly long time to kill the filibuster for executive and non-Supreme Court judicial appointments, even though the blanket refusal of Republicans to permit D.C. Circuit appointments was something anyone should have seen coming a mile away. It’s a key reason why, although the federal courts have taken huge steps in the right direction, more wasn’t accomplished.
On a related note, anyone who thinks that a Republican-controlled Senate will have to confirm a Clinton Supreme Court nominee because CIRCUIT SPLITS are mistaking nostalgia for reality as surely as Leahy was.