Which Obama will Pick Judges?

The number one question on the minds of federal judiciary watchers these days is ‘which Barack Obama will be in charge of selecting federal judges?’ The pragmatic, bipartisan Obama; or the judicial activist Obama who promises judges who rule with their hearts and expresses regret that the Warren Court “didn’t break free” from legal constraints in order to bring about “redistribution of wealth?” An article by Neil Lewis in today’s New York Times provides some clues to which Obama we’ll see, while reporting on the White House’s “effort to move rapidly to select appeals court judges.”

Since the election, the strongest clues about the type of judges President Obama will appoint have been found in his top picks for the Department of Justice, which have come from the more liberal wing of the Democratic party. The newest clue is the Times’s report today that “the candidates being considered by the Obama White House for early nomination do not appear to have especially ideological profiles.” That seems to be an accurate characterization of the three potential appeals court nominees – from Virginia, Maryland and New York – named in the article. However, it would be a mistake to generalize from so small a sample, especially since both the politics and mechanics of judicial selection make moderate nominees most likely to be the first announced.

Those fearing that the President’s all-important appeals court nominees will generally lean far to the left can take no comfort from a second piece of news in the Times article:

“[White House counsel Gregory] Craig told Democratic senators that the White House would rely on their recommendations to fill the district courts. But he said that while Mr. Obama would welcome their advice, he warned that filling the appeals courts was largely a presidential prerogative, participants said.”

In contrast to district court nominations, appeals court nominations were once largely a presidential prerogative. But that distinction has eroded under recent administrations. If Obama is successful in taking back the prerogative, the chances of far left picks are increased. The reason: senators typically recommend judicial nominees based on personal relationships and relatively parochial interests, while the White House is more likely to be guided by broader considerations, including ideology.

However, in the 27 states with one or more GOP senators, Obama may be forced to consult with Republican senators regarding appeals court as well as district court nominations. As the Times describes it,

“Mr. Obama also faces a different threat from Senate Republicans, who earlier this month threatened, though in vague terms, to block his judicial nominees by filibuster if they were not consulted on vacancies from their home states.” (see here for more about the threat)

In any case, it may be no coincidence that the White House’s nominations plans appear to be most developed in three states –Virginia, Maryland and New York – that have no GOP senators.

The article concludes by noting that

“Underlying all the maneuvering is an awareness that much of it may serve as a dress rehearsal for the spring, when many expect Mr. Obama will have a Supreme Court vacancy to fill.”

The Times seems to be gingerly referring to the widespread expectation that Justice Ginsburg – recently diagnosed with pancreatic cancer -- will retire from the Court at the end of this term. But there has also been speculation about Justice Souter and the 88-year-old Justice Stevens stepping down.