One thing that often gets lost in the moment-to-moment measurements of a president’s efficacy and his legacy is one of the most enduring and resilient effects he can have on American life: court appointments.
This week we were reminded once again of how much sway federal judges hold as they dealt several setbacks to liberal causes.
The conservative Court of Appeals for the District of Columbia struck down the birth control mandate in the Affordable Care Act, which required employers to offer contraceptive coverage to their employees.
The conservative Court of Appeals for the Fifth Circuit reinstated most of Texas’ new abortion restrictions that a federal district judge, Lee Yeakel, had struck down as imposing an undue burden on women seeking abortions.
And the Court of Appeals for the Second Circuit halted sweeping changes to New York City’s outrageous stop-and-frisk policy, changes called for by Judge Shira A. Scheindlin of Federal District Court in Manhattan who found, “The city acted with deliberate indifference toward the N.Y.P.D.’s practice of making unconstitutional stops and conducting unconstitutional frisks.”
Supreme Court justices as well as federal court of appeals and district court judges are presidential appointees. This is where a president can exert power long after he has officially faded from power. And that is exactly what President Obama is doing.
“The federal judiciary — long the province and priority of Republicans — is turning more Democratic,” USA Today reported Friday. “The number of full-time federal judges named by Democratic presidents will draw even Friday with the number named by Republicans, following two retirements. The next of President Obama’s nominees to replace a Republican-named judge will tilt the balance in Democrats’ favor; that majority will grow for the remainder of his term.”
And then there’s the Supreme Court, dominated by conservatives, which, strangely, more people have deemed too liberal than too conservative since Obama was elected, according to Gallup.
In fact, the Supreme Court has not been dominated by Democratic appointees since the 1960s. The current split is five Republican appointees to four Democratic appointees, two of whom were named by President Obama.
Four justices are now 75 or older. That means that the direction of the highest court could fall to the next president. Federal judgeships must be a paramount consideration in the picking of the next president.
Consider the judicial leanings of the leading Republican contenders for president in 2016 and the effects they could have on the future of the nation’s courts.
Gov. Chris Christie of New Jersey has been blunt and unapologetic, as is his wont, about his judicial philosophy in regard to his state’s Supreme Court. In August, he reiterated, “Even before I officially became governor I made clear it was my intention to reshape the court.” And in 2010 he refused to reappoint New Jersey’s only black Supreme Court justice. The New York Times editorial page called that move “a case of political overreach” and “a national disgrace.”
In Louisiana, Gov. Bobby Jindal last year challenged a federal court ruling that allowed Bernette Johnson to become the court’s first black chief justice. Part of what was at issue was that she was initially appointed to the State Supreme Court in a settlement with the federal government over discrimination on the court. Johnson was elevated in spite of Jindal’s challenge.
When the United States Supreme Court affirmed Obamacare last year, Rand Paul issued a statement saying, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so.” Um, sir, that’s exactly what it means.
After the court’s rulings on the Defense of Marriage Act and California’s Proposition 8 this summer, Senator Marco Rubio issued a statement saying the court had “overstepped” on DOMA. But, he added: “I do not believe there exists a federal constitutional right to same-sex marriage. Therefore, I am glad the Supreme Court did not create one in the Proposition 8 case.”
Senator Ted Cruz is the former solicitor general of Texas and has argued before the Supreme Court nine times, including once to persuade the court “not to release Michael Haley, who had been sentenced to 14 years in prison for stealing a calculator from a Walmart, even though the maximum was two years under state law,” according to The Times.
Cruz understands the judicial stakes well, saying last year at the Values Voter Summit that the country was “only one justice away from a radical five justice liberal majority on the Supreme Court.”
