Liberals often tend to overstate conservative electoral achievements. Of the five most recent presidential elections, Republicans have won the popular vote in one, and their congressional majorities have never been large enough to pass legislation without Democratic cooperation.
But if there’s one place where conservatives have had great success, it’s the federal judiciary. Beginning with Ronald Reagan and continuing to George W. Bush, there’s been a concerted effort to bring reliable conservatives to the federal bench. The hope is that they will stand as a bulwark against activist government, and for the most part, that’s been the case: The individual mandate, for example, would have never become a constitutional issue if it weren’t for the influence of conservative judges. The last three GOP presidents appointed more than 150 judges to federal appellate courts.
After Barack Obama won the White House in 2008, there was hope that he would reverse this trend. Instead — to the potential detriment of his policies and priorities — he’s done little to make a mark on the federal judiciary. When staffing the nation’s most powerful courts, Reuters reports, Obama leans towards established moderates — not the younger liberals who would have a lasting influence on the direction of American law: “Obama’s 30 appointees have generally been moderates who mainly served on lower courts and were often selected in consultation with Republican senators.”
Some of this is a product of unprecedented obstruction by those same Republican senators. But a large portion of the blame falls on Obama’s shoulders. Reuters notes the three-person vacancy on the 11-member D.C. Court of Appeals, which — in terms of power — is second only to the Supreme Court. If this were a priority for Obama, it would almost certainly be the subject of complaint from the White House. As it stands, the administration is silent.
Whereas George W. Bush entered the White House with a set of conservative appointments — 29 nominations in his first year — Obama has lagged with only 12. Like Obama, Bush faced opposition from Democratic senators, but nonetheless, he continued to flood the Senate with conservative nominees, in a concerted effort to further reshape the judiciary.
At the moment, there are 14 vacancies on the U.S Court of Appeals and 62 vacancies on various district courts. If President Obama is reelected, he’ll have a chance to fix the mistake of his first term, and nominate a slate of liberals to fill those positions.
But if Obama loses, he will have played handmaiden to a complete conservative transformation of the federal judiciary. In all likelihood, a President Romney would follow in the footsteps of his GOP predecessors, and blitz the Senate with judicial nominations. Obama’s failure would give Romney a chance to shape the court for generations, blunting liberal progress on every level.
It’s not an overstatement to say that by neglecting the judiciary, Obama has placed the future of liberalism in doubt. His loss wouldn’t just lead to the repeal of Obamacare or Dodd-Frank — the promises of a President Romney. It would jeopardize the constitutional status quo that made those laws possible.