It looks like President Obama will begin leaving his mark on the federal bench—and consequently on American law and life for decades to come—sooner rather than later.
According to The New York Times, the White House is signaling that it may soon be ready to name its first batch of nominees. Currently, there are 15 vacancies on the federal courts of appeal; the Times focuses on potential nominees for the Second Circuit (one vacancy) and the Fourth Circuit (four vacancies). News from the White House Counsel’s office indicates that Baltimore-based District Court Judge Andre Davis and University of Virginia Law School Professor Elizabeth Magill may be tapped for the Fourth, and former law professor and current District Court Judge Gerard Lynch could get the nod for the Second. It is too early to comment on the names; their nominations are not official and every nomination to the powerful circuit courts requires a thoughtful review.
However, as the Times notes, the Fourth Circuit is likely to be one of the most hotly contested. The Fourth Circuit used to be the bulwark of movement conservatism, though a series of departures from some of its leading conservative ideological lights has begun to reshape the court. The Fourth Circuit is of particular importance to many because of the role it plays in reviewing cases related to national security.
It wouldn’t be surprising if the Fourth Circuit is the place where we start to see Senate Republicans attempting to make good on their threats to pursue an obstructionist strategy if the Democratic White House doesn’t send up nominees who share a Republican political philosophy. (Quite a change in tune from their earlier refrains about how important deference to the president is when it comes to nominees.) There have already been calls for President Obama to renominate some of President Bush's nominees, including Judge Glen Conrad to the Fourth. Proponents of this plan like to point to the example of Judge Roger Gregory, originally a Clinton nominee to the Fourth Circuit, who was renominated by President Bush. What they leave out is the rest of the story. The president faced enormous pressure from a member of his own party: then-Senator John Warner of Virginia. Senator Warner was so appalled by the treatment of Judge Gregory that he urged President Bush to right the wrong. Judge Gregory was subject to a campaign waged by Jesse Helms to keep African-Americans off the Fourth Circuit; Judge Gregory was the fourth nominee to his seat stymied by Helms.
The Times story does serve as another reminder, however, of the task facing the administration. Because they serve for life, rather than just a few short years, federal judges are one of a president’s most important and lasting legacies. We’ve said it before, and we’ll say it again: As the White House considers more names, President Obama should look for men and women with a commitment to core constitutional values of liberty and equal justice for all, men and women not driven by a political agenda that favors the wealthy and powerful over the rest of America (no matter how many petulant letters he receives from the Senate Republican caucus).