Jeffrey Toobin, New Yorker, October 27, 2014

In July, a three-judge panel of the United States Court of Appeals for the D.C. Circuit issued a ruling that threatened the future of President Obama’s Affordable Care Act. By a vote of two to one, the court held, in Halbig v. Burwell, that the insurance subsidies that allow millions of Americans to buy health insurance were contrary to the text of the law and thus were illegal. If such a decision had been made earlier in Obama’s tenure, lawyers for his Administration would have been left with a single, risky option: an appeal to the politically polarized, and usually conservative, Supreme Court.

This year, the lawyers had another choice. When President Obama took office, the full D.C. Circuit had six judges appointed by Republican Presidents, three named by Democrats, and two vacancies. By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc–that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books. Oral argument before the full court is now set for December.

The transformation of the D.C. Circuit has been replicated in federal courts around the country. Obama has had two hundred and eighty judges confirmed, which represents about a third of the federal judiciary. Two of his choices, Sonia Sotomayor and Elena Kagan, were nominated to the Supreme Court; fifty-three were named to the circuit courts of appeals, two hundred and twenty-three to the district courts, and two to the Court of International Trade. When Obama took office, Republican appointees controlled ten of the thirteen circuit courts of appeals; Democratic appointees now constitute a majority in nine circuits. Because federal judges have life tenure, nearly all of Obama’s judges will continue serving well after he leaves office.

Obama’s judicial nominees look different from their predecessors. In an interview in the Oval Office, the President told me, “I think there are some particular groups that historically have been underrepresented–like Latinos and Asian-Americans–that represent a larger and larger portion of the population. And so for them to be able to see folks in robes that look like them is going to be important. When I came into office, I think there was one openly gay judge who had been appointed. We’ve appointed ten.”

The statistics affirm Obama’s boast. Sheldon Goldman, a professor at the University of Massachusetts at Amherst and a scholar of judicial appointments, said, “The majority of Obama’s appointments are women and nonwhite males.” Forty-two per cent of his judgeships have gone to women. Twenty-two per cent of George W. Bush’s judges and twenty-nine per cent of Bill Clinton’s were women. Thirty-six per cent of President Obama’s judges have been minorities, compared with eighteen per cent for Bush and twenty-four per cent for Clinton. Obama said that the new makeup of the federal bench “speaks to the larger shifts in our society, where what’s always been this great American strength–this stew that we are–is part and parcel of every institution, both in the public sector as well as in the private sector.”

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For a long time, the Court has moved toward outlawing all forms of racial preference, including affirmative action, and Obama seems accepting, even supportive, of the change. In 1978, in Regents of University of California v. Bakke, the Court rejected the use of racial quotas in graduate-school admissions. Chief Justice Roberts has made the fight against the traditional civil-rights agenda a cornerstone of his tenure. He wrote nearly a decade ago, “It is a sordid business, this divvying us up by race.”

Specifically, Obama told me that he believes the Constitution permits the use of racial preferences, though only within carefully defined limits. “It’s legitimate to say that when the government takes race into account it should be subject to some oversight by the courts,” he said. Judicial “oversight” of affirmative action has a controversial history. For many decades, starting in the nineteen-thirties, the Court applied “strict scrutiny” to laws that discriminate against racial minorities, and struck down most of them.

Starting in 1995, though, with Adarand Constructors v. Pena, the Court, in an opinion by Sandra Day O’Connor, began applying “strict scrutiny” to laws that favor racial minorities–viewing affirmative action, in effect, as a form of racial discrimination. O’Connor’s opinion drew a stinging dissent from John Paul Stevens. “There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination,” he wrote. “Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.” In its embrace of judicial oversight of affirmative action, Obama’s view appears closer to O’Connor’s than to Stevens’s.

By 2003, O’Connor had softened her stance somewhat, writing the majority opinion in Grutter v. Bollinger, which upheld the use of affirmative action as a means to achieve diversity at the University of Michigan Law School. However, she made clear that she regarded affirmative action as a stopgap. In twenty-five years, she wrote, racial preferences would be neither required nor permissible. Again, Obama seemed to agree with O’Connor, in his grudging support for racial preferences in admissions. He said, “If the University of Michigan or California decides that there is a value in making sure that folks with different experiences in a classroom will enhance the educational experience of the students, and they do it in a careful way,” the practice should be allowed. Still, he added, “most of the time the law’s principal job should be as a shield against discrimination, as opposed to a sword to advance a social agenda, because the law is a blunt instrument in these situations.”

Obama reiterated his belief that the biggest issues concerning race are “rooted in economics and the legacy of slavery,” which have created “vastly different opportunities for African-Americans and whites.” He went on, “I understand, certainly sitting in this office, that probably the single most important thing I could do for poor black kids is to make sure that they’re getting a good K-through-12 education. And, if they’re coming out of high school well prepared, then they’ll be able to compete for university slots and jobs. And that has more to do with budgets and early-childhood education and stuff that needs to be legislated.”

I asked the President whether O’Connor’s time line in the Grutter case, now about halfway expired, was accurate. He replied that Justice O’Connor would “be the first one to acknowledge that twenty-five years was sort of a ballpark figure in her mind.” In any event, he said, progress in racial justice and equality would not come principally from the courts. “And that’s where politics comes in,” he said.

The previous three Presidents who served two terms–George W. Bush, Bill Clinton, and Ronald Reagan–spent their last two years in office with the Senate under the control of the opposition party. Polls suggest that Obama and the Democrats may meet the same fate. The “Thurmond rule,” which emerged when Senator Strom Thurmond, of South Carolina, blocked Lyndon Johnson’s attempt to appoint a new Chief Justice near the end of his Presidency, holds that the Senate stops acting on lifetime judicial nominations roughly six months before a Presidential election. Still, Obama’s judicial legacy is not complete. According to statistics compiled by the Alliance for Justice, a liberal advocacy group, Bush, Clinton, and Reagan all saw about twenty per cent of their total judicial appointments confirmed during their final two years in office. If the pattern holds, that would mean the confirmation of about seventy more Obama judges.

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