The Republican obstruction of President Obama’s judicial nominees could reshape the federal courts for a generation.
It’s not just that Obama has the lowest judicial confirmation rate of any president in the last forty years, or that many of the more than one hundred vacancies have been classified as judicial emergencies. It’s that of the judges Obama has confirmed, few of them are young, which means that they’ll need to be replaced sooner rather than later. As Emily Bazelon wrote last week, “Republicans have appointed 41 federal appellate judges under age 45 to the Democrats’ 10. Bush placed 13 judges in this group. Obama, so far, has zero.”
This leaves Democrats with a shallow bench for picking future Supreme Court nominees. But that is the least of the problem. With economic growth weak, and the president having no better than an even shot at being reelected, it’s very possible that the judiciary, which is already skewing right because of Bush’s eight years in office, might end up getting pushed further in a conservative direction. Not just by the vacancies that remain, but by the ones that will occur as a result of the Obama administration failing to get young judges confirmed.
If Bush v. Gore didn’t convinced liberals of the importance of the judiciary, the legal precariousness of the Affordable Care Act should get liberals to wake up about its importance. But as Jonathan Bernstein points out, the Obama administration has shown little appetite for a fight over judicial nominations, and has even failed to put forth enough nominees for the vacancies that remain.
Most of the time, we’re focused on elections as determinative of important political outcomes. But political majorities are fleeting, and judges are lifetime appointments. The American system has a built-in status quo bias that makes big changes difficult to achieve. However, if Republican obstruction and administration indifference continue, the conservative domination of the federal bench could dramatically alter the country for years to come.