‘Nuclear Option’ Helps Obama Reshape The Courts For A Generation

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President Barack Obama can thank outgoing Senate Majority Leader Harry Reid (D-NV) for triggering the “nuclear option” in November 2013 and securing him one of the most robust judicial legacies of any modern president.

In six years, he has appointed a whopping 307 judges, who will shape the law for decades after he leaves office. The final 12 district judges were confirmed in the closing night of the Senate session on Tuesday, Reid’s final move before Democrats surrender control of the chamber.

“The Obama Administration and the United States Senate have given Americans the best possible holiday present: the gift of justice,” said Nan Aron, the president of the progressive law and policy group Alliance For Justice.

A total of 132 judges were confirmed in the 113th Congress — the most since the 1970s.

Perhaps most significant is his appointment of 53 judges on federal circuit courts, which have the last word on most matters of law. When Obama took office, just one of 13 appeals courts had a majority of Democratic-appointed judges on the active bench. Today, nine of 13 appeals courts have a majority of Democratic appointees.

“There has been an extraordinary onslaught of confirmations in the last year,” said Russell Wheeler, an expert on federal courts at the Brookings Institution.

Obama has named the first-ever Native American woman and Indian-American federal judge. He has placed more female and Hispanic judges than any previous president, and more Asian-American and openly gay judges than all other presidents combined.

“Before Obama, 59 percent of the active judges were white males. Now it’s down to 51 percent. That’s quite a change in 6 years,” Wheeler said. “You probably want to have a judiciary that looks like the people it’s serving, and if they’re all white males then you don’t have that.”

Until November 2013, Obama lagged behind his predecessors in confirming judges, facing unusual delays by the Senate Republican minority. Then Reid and 51 Democrats triggered the “nuclear option” to scrap the 60-vote threshold for all nominations other than the Supreme Court, advancing some stalled nominations and kicking the process into overdrive. Since then, Obama has outpaced his two predecessors in confirming appellate court judges.

In the last year, Democrats have confirmed 14 of Obama’s circuit court nominees, half with fewer than 60 votes. The most salient impact of the “nuclear option” was to add three judges to the D.C. Circuit Court of Appeals, widely described as the second most powerful federal court, and a feeder to the Supreme Court. Senate Republicans had refused to fill the three vacancies. The nuclear option also freed Obama to appoint some more liberal judges, including Nina Pillard to the D.C. Circuit, who drew comparisons to Justice Ruth Bader Ginsburg — and faced GOP opposition — for her work on gender equality.


Senate Majority Leader Harry Reid, D-Nev., joined at right by Sen. Chuck Schumer, D-N.Y. (AP Photo/J. Scott Applewhite)

Research by political scientists Robert Carp and Kenneth Manning finds that Obama’s judges are “somewhat more liberal than the Clinton judges but slightly less liberal than the Carter and Johnson jurists,” based on an analysis of rulings from 1932 to 2013 by judges appointed by each of the Democratic presidents.

“We’ve noticed patterns of voting with respect to certain kinds of legislation that gets upheld,” Randy Barnett, a respected conservative legal scholar at Georgetown University, said recently. “There are certain executive branch practices that get upheld that would not have before.”

For Democrats, the downside of the filibuster rule change is that Republicans have, in protest, slowed down confirmations of even judicial nominees they support, forcing procedural votes when the nominations could otherwise have breezed through.

The bad news for Obama is that the coming Republican majority can veto any judicial nominee during his final two years. Incoming Senate Majority Leader Mitch McConnell (R-KY) hinted at revenge if Reid opted to go nuclear, and conservative legal advocates suggest that Republicans would rather have vacancies than bring up judges whom they dislike.

“I say to my friends on the other side of the aisle: you’ll regret this,” McConnell said in November 2013. “And you may regret it a lot sooner than you think.”

Retiring Sen. Carl Levin (D-MI), a staunch opponent of the “nuclear option” and one of just three Democrats who voted against it, said he sees a silver lining to the confirmation of many judges who had been blocked.

“I think there could be [an upside] in that area — that more judges that have been confirmed than otherwise would, short-term,” Levin told TPM. “Yeah.”

The White House said it was “grateful to the Senate for its action.”

“A fully functioning judiciary is critical to the administration of justice,” White House Counsel Neil Eggleston said, “and a judiciary that better resembles our nation instills even greater confidence in our justice system.”

Correction: this article previously stated that Obama appointee the country’s first black lesbian federal judge in Staci Michelle Yandle. That milestone was achieved by Bill Clinton with his appointee Deborah Batts.

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