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Going Robe

Obama's judicial appointment strategy isn't working. Here's a better one.

Last month, the Senate voted to confirm Judge David Hamilton to the United States Court of Appeals for the Seventh Circuit. Getting a judge confirmed is always a good thing for a president. But it's hard to view what happened to Hamilton as a victory for Obama. In fact, if anything, the episode suggests that the president's approach to nominating federal appellate judges is seriously misguided.

Back in September, The New Yorker's Jeffrey Toobin reported that the administration nominated Hamilton in order to show that it was taking a new, post-partisan approach to judicial appointments. And Hamilton is indeed a moderate: He was backed by Richard Lugar, a Republican senator from his home state of Indiana, and was endorsed by the head of the Indiana chapter of the Federalist Society, who called his judicial philosophy "well within the mainstream." In fact, if he had been nominated for a more important position--maybe a judgeship on the D.C. Circuit--one could have actually imagined liberals raising concerns.

Yet Hamilton was voted out of the Senate Judiciary Committee on a strictly party-line vote. He was filibustered on the floor of the Senate. And, after cloture was successfully invoked, not a single Republican besides Lugar voted to confirm him.

Hamilton isn't unique. Obama's other federal appellate nominees have also been generally moderate, safe choices. A majority of them have served as prosecutors (usually considered evidence that a judge might lean more to the right than liberals would want). Beverly Martin, a nominee from Georgia, was endorsed by both Republican senators from the state. Albert Diaz was a lawyer for Big Tobacco. Barbara Keenan has upheld the death penalty for crimes committed by juveniles. Joseph Greenaway rejected (in part) claims brought by Nazi labor camp survivors and (also in part) claims brought by immigrants against Wal-Mart. The latter decision, wrote the Alliance for Justice, a liberal group, "has not been well-received by labor and immigrant rights advocates." Appearing before the Senate Judiciary Committee, nominee Andre Davis agreed with some of Senator Tom Coburn's skepticism regarding courts using international law, while another nominee, Gerard Lynch, affirmed Senator Jeff Sessions's platitudes about the need for courts to follow the law rather than make it.

The point is not that any of these nominees would make bad appellate judges, or even that they will necessarily prove disappointing to liberals. It is simply that there were plenty of judges and lawyers with more clearly liberal records and inclinations available--and, instead of seeking them out, Obama opted for relatively cautious, moderate picks.

Yet besides Hamilton, only two of the twelve nominees--Davis and Lynch--have so far been confirmed. Both Davis and Lynch received a substantial number of GOP votes when their nominations eventually reached the floor. But Davis waited 221 days after his nomination to be confirmed, and Lynch waited 168. The reason, presumably, was Republican-orchestrated delay. (It's impossible to know for sure because these things are cloaked in the mystery of arcane Senate procedure. But it seems likely.) By contrast, George W. Bush's nominees confirmed in the first nine months of his term waited an average of 116 days. A small difference? Maybe. But when you combine that with the filibuster of Hamilton and the hostile reception given by Republican Senators to Sonia Sotomayor--whose appointment did nothing to alter the Supreme Court's overall ideological balance and may have even moved it slightly to the right on some issues--it becomes clear that Republicans are not particularly interested in accepting the judicial olive branch that Obama has extended to them.

The lesson here for Obama is simple: If Republicans are going to obstruct even moderate nominees, and if Senate Democrats are sometimes going to have to break filibusters to stop them, then why keep appointing generally moderate judges meant to appeal to Republicans? Why not try to put your own philosophical stamp on the courts?

Of course, it could be that the president actually prefers a mainly centrist, as opposed to liberal, judiciary. But I'm not so sure. Obama famously said he wanted judges with "empathy," and while he has appointed some legal moderates to non-judicial posts, he has also appointed more liberal figures as well, such as Thomas Perez to head the Civil Rights Division in the Justice Department. An Obama administration freed from overly cautious political calculating might appoint some judges like Hamilton--but it probably wouldn't tilt toward moderates quite so much.

The politics of placing liberals on the bench aren't nearly as daunting as the administration seems to think. Democrats have enough votes to break a filibuster, as they ultimately did for Hamilton--and, unlike with health care reform, centrists like Joe Lieberman and Ben Nelson don't seem to be wavering on judicial nominations. Beyond the 60 senators in the Democratic caucus, there appear to be some Republicans who will vote to end a filibuster on principle, even if they won't vote for the nominee. (The Hamilton filibuster was broken by 70 senators, including some Republicans who did not subsequently vote to confirm.)

More importantly, outside the Senate, Obama would have public opinion on his side. Research conducted recently by Stephen Ansolabehere of MIT and Nathaniel Persily and Jamal Greene of Columbia Law School found that 58 percent of Americans thought it very or somewhat important for the Supreme Court to exhibit "empathy" in judging. A majority also supported interpreting the Constitution according to "current realities" rather than according to the "original intentions" of the Framers. These findings are largely consistent with a series of polls conducted by Quinnipiac University over the years.

The public, in other words, would be perfectly content to watch Obama put his stamp on the judiciary. If only he weren't so fixated on wooing Republican senators who seem determined not to be wooed.

David Fontana is associate professor of law at George Washington University.

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