Analysis: Obama poised to make mark on the judiciary

Richard Wolf and David Jackson | USA TODAY

WASHINGTON — President Obama's simultaneous nominations of three judges to fill the nation's most powerful appellate court signals a new chapter in a political battle that's been raging for more than a quarter century.

It has taken Obama well into his fifth year in office to bring the federal judiciary essentially back to even: There are nearly as many judges nominated by Democratic presidents as there are Republican nominees on the bench.

Now the president is poised to make his mark on the federal district and appeals courts in much the same way Presidents Reagan and George W. Bush did — something even his liberal allies lament he has failed to do since 2009.

"This is the first signal that the Obama administration is getting serious or is stepping up its game when it comes to judicial nominations," said Jonathan Adler, a Case Western Reserve University law professor and conservative legal commentator. "It has been fair to say that Obama did not make lower-court nominees a priority up until now."

But for Obama to succeed, he must overcome Republican opposition that has grown more defiant over the years, since Democrats first began blocking Reagan nominees in the late 1980s.

Both sides cite statistics for every stage of the process to make their case: vacancies, nominations, delays, filibusters, confirmations and judicial caseloads. "The longer you go with these things, the more statistics there are to throw around," said Arthur Hellman, a University of Pittsburgh law professor.

What's clear is the partisan trend. When George W. Bush left office, nearly six in 10 federal judges were Republican nominees. Now the GOP edge is 51%-49%; Obama has 3½ years remaining to tilt the courts his way.

"We're clearly at a tipping point in the federal courts, which is why the Republicans are putting up such a fight," said Nan Aron, president of the liberal Alliance for Justice. "For many years, the Republicans have had an ideological edge in the courts, particularly in some key circuits. Since President Obama's election, that edge is slowly but surely being eroded."

Still, liberal and conservative advocacy groups agree that recent GOP presidents have taken more of an active interest in turning the federal courts in their direction. "The Republicans nominate and appoint more conservative people than Democrats nominate and appoint liberal people," says University of Richmond law professor Carl Tobias.

What's less clear is which presidents have been treated more unfairly by their opponents during the Senate confirmation process. That has become a blizzard of data, as the White House cites longer delays for Obama's nominees and Republicans complain about longer appeals-court filibusters under Bush than President Clinton.

Obama's nominations Tuesday of Georgetown law professor Nina Pillard, appellate litigator Patricia Millett and federal District Judge Robert Wilkins focused attention on the D.C. Circuit Court of Appeals that serves as a frequent springboard to the Supreme Court.

The appeals court reviews administration regulations and executive orders and handles controversial issues ranging from the environment to national security — often, in recent years, to the chagrin of the White House.

It has been the scene of bitter nomination battles in the past. Both Supreme Court Chief Justice John Roberts and Justice Elena Kagan were blocked, though Roberts eventually won confirmation. Democrats blocked two Bush nominees, Miguel Estrada and Peter Keisler. Republicans blocked Obama's first nominee, Caitlin Halligan of New York, before confirming Sri Srinivasan last month.

The three new nominations, unveiled Tuesday in a grand Rose Garden ceremony befitting a Supreme Court nominee, opened up another statistical battle. The White House argued it simply was seeking to fill three vacancies on the 11-seat court, now operating with eight active judges and six retired "senior" judges.

"Imagine if a third of the seats on the highest court — the Supreme Court — were empty," Obama said Tuesday. "We would rightly consider that a judicial crisis."

Republicans called it an effort to "pack" a court that has fewer pending cases per judge than all but two of the 11 other circuit courts, and far fewer filed cases per three-judge panel than any appeals court. By contrast, 33 other district and appellate courts across the nation have caseload problems that qualify as "judicial emergencies" by the Administrative Office of the U.S. Courts.

"The question (is) whether this circuit court, which is apparently less busy than all but one circuit court in the nation, needs to have a full complement of judges," Senate Republican leader Mitch McConnell said Tuesday.

The Judicial Conference of the United States, headed by Chief Justice Roberts, wants them filled — along with the D.C. Circuit. That's where Obama has decided to make his fight.

"He's playing for the long term here," Hellman said. "He sees his legacy as being decided to some substantial extent by the D.C. Circuit."