One Obama nominee to the court, Caitlin Halligan, withdrew in the face of a filibuster threat. Another, Sree Srinivasan, was confirmed in May. In June, when Obama nominated three people as a package to fill out other vacancies on the court, GOP Sen. Charles Grassley accused him of trying to “pack” the court and introduced a bill to reduce its size. The fate of the Obama Three is unclear, but without them, Democrats are nearly certain to lose ground on the already conservative court. All four active GOP appointees are under age 70, compared with only two of four named by Democrats. Of the six senior appointees who still hear cases, one is a Democrat age 73 and five are Republicans ages 67 to 78. Democratic retirements after 2016 could well be filled by a GOP president.
How much does any of this matter? A lot.
First of all, federal judges deal with virtually every issue of our times: from abortion, gay, gun, property, consumer, disability, women’s and civil rights; to capital punishment, civil liberties, and the regulation of workplaces, businesses, Wall Street, the environment, and campaign finance.
Second, there really is an ideological gulf between judges named by Democratic and Republican presidents, and it’s especially evident in rulings on provocative subjects. “Ideally, if the judges are all trying to look at the law in a neutral way, they will come to similar conclusions. But we know that’s not the case,” says Severino.
Headlines from time to time highlight judges making decisions that might have surprised the presidents who named them: the Ronald Reagan appointee who ruled that California’s gay-marriage ban was unconstitutional; the George W. Bush appointee who was the deciding vote in a 2-1 Appeals Court decision upholding the 2010 Affordable Care Act; and, as the marquee example, Chief Justice John Roberts serving as the deciding vote to uphold the health law when it reached the Supreme Court.
But on the hot-button issues that divide the judiciary as well as the nation, judges named by liberal and conservative presidents are truer to type. In 2010-11, for example, three federal judges named by Democrat Bill Clinton upheld the 2010 health law while two named by Republicans George W. Bush and Ronald Reagan ruled it unconstitutional. A 2006 analysis of more than 19,000 votes by federal judges in Are Judges Political? concluded, “Republican appointees and Democratic appointees agree more often than they disagree.” But it said that the opposite is true “in ideologically contested cases, involving the most controversial issues of the day.” Overall, Democratic appointees took a liberal position 52 percent of the time, compared with 40 percent for GOP appointees.
This year’s The Federalist Society: How Conservatives Took the Law Back From Liberals, by Michael Avery and Danielle McLaughlin, says, “Every single federal judge appointed by President George H.W. Bush or President George W. Bush was either a member or approved by members of the Federalist Society,” a group of conservative and libertarian lawyers formed in 1982 to counter the influence of “orthodox liberal ideology which advocates a centralized and uniform society.” Not surprisingly, a 2004 study of George W. Bush’s judicial appointees found that “they are among the most conservative on record.”