By Alexander Bolton - 05/26/14 11:50 AM EDT
The federal judiciary has swung to the left as Senate Majority Leader Harry Reid (D-Nev.) has confirmed President Obama’s judicial nominees at a torrid pace in recent weeks.
Reid has put his foot on the gas to ensure that Obama will leave his imprint on the courts even if Democrats lose control of the Senate in November, which some political handicappers say is probable.
If Sen. Mitch McConnell (R-Ky.) becomes majority leader next year, Democrats fear he would slow the pace of judicial branch confirmations dramatically.
At the start of Obama’s first term, 10 of the nation’s 13 circuit courts had a majority of judges appointed by Republican presidents and only one, the 9th Circuit, which has jurisdiction over California, had a majority of Democratic appointees. The 2nd and 3rd circuits were evenly split.
Currently, nine circuit courts have a majority of Democratic-appointed judges while only four have a majority of Republican picks. The data was compiled by the Alliance for Justice, a group that tracks the third branch.
“There are now 67 vacancies. We haven’t been that low for five years. That tells us that the nuclear option’s detonation in November has allowed the Democrats to confirm many more nominees than they have been [doing],” said Carl Tobias, a professor at the University of Richmond’s law school, who tracks judicial nominees.
Reid used a rare procedural tactic known as the nuclear option in November to strip Republicans of the ability to filibuster circuit and district court nominees. Supreme Court nominees are still subject to a 60-vote threshold before moving to a final vote.
The nation had 94 circuit and district court vacancies at the start of November before Reid changed the rules to allow nominees to advance through the chamber with only simple-majority support.
Tobias said Democrats would be “foolish” not to consider how much tougher it will be to confirm nominees if they lose control of the Senate.
“It’s an important legacy the president has. Long after he’s left the White House, they’ll still be deciding cases,” he said.
Michelle Schwartz, the director of justice programs at the Alliance for Justice, said the high number of court vacancies before the recent spate of confirmations had delayed justice for thousands of Americans.
“In a lot of places civil cases go to the back of the line because they need to prioritize criminal cases, so businesses are kept in limbo while they’re waiting to find out what’s going to happen in their cases. People who have been injured have medical bills piling up over the course of years,” she said.
A major concern for Democrats is the fate of the Supreme Court, which has a conservative tilt with five rightward-leaning justices.
Court experts see Justice Ruth Bader Ginsberg, a former lawyer for the American Civil Liberties Union, as the liberal justice most likely to retire next.
Some liberal activists have called for Ginsberg to retire while Obama is president and Democrats control the Senate to ensure she is succeeded by a judge sympathetic to their causes.
The 81-year-old justice, however, has shown no intention of stepping down.
With the high court leaning to the right, the next best option for Democrats and liberal activists is to stock the lower courts with judges willing to limit the power of corporations, strike down gay-marriage bans, protect the authority of the federal government and interpret the law in other ways favorable to their agenda.
Curt Levey, president of the Committee for Justice, a conservative legal and legislative action group, noted that the lower courts have significant influence because the Supreme Court considers few cases.
He pointed to the issue of gay marriage. The Supreme Court struck down the Defense of Marriage Act last year but it did not rule on whether state gay-marriage bans were unconstitutional. Since that decision, federal district courts have stepped into the void to overturn such bans, as a judge did last week in Pennsylvania.
Levey said that by the time the issue returns again to the Supreme Court, gay marriage may be a well established practice across the country.
Conservative activists say Obama will have a much tougher time pushing his judicial nominees through the Senate if Republicans gain the majority.
“It will slow down the process dramatically,” said Carrie Severino, chief counsel of the Judicial Crisis Network, a group committed to limited government.
Conservatives say David Barron, Obama’s nominee to the 1st Circuit Court of Appeals, who received Senate confirmation Thursday with a vote of 53 to 45, is an example of the type of “activist” judge who would not move in a GOP-controlled Senate. Two Democrats, Sens. Joe Manchin (W.Va.) and Mary Landrieu (La.), joined 43 Republicans in voting against him.
Through May 22 of Obama’s sixth year in office, the Senate has confirmed 257 of his judicial nominees, according to Alliance for Justice. Forty-nine of them were circuit court nominees.
At the same point in George W. Bush’s presidency, the chamber had confirmed 236 nominees, including 44 circuit court judges.
It had confirmed 220 district court nominees and 40 circuit court picks by late May of President Clinton’s sixth year in the White House.