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Wednesday, March 11, 2009

Obama's Judicial Legacy: Chapter One

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).

Stay tuned.


Jeffrey L. Greenspan said...

Judge Andre Davis, a highly qualified and experienced jurist who has had a distinguished tenure on the United States District Court for the District of Maryland (Baltimore Division), would make an excellent addition to the Fourth Circuit. He was originally nominated to this post by President Clinton back in 2000 but his nomination was stonewalled by the then Republican dominated Senate Judiciary Comittee which refused to hold a hearing on the nomination. This nomination would right a wrong and provide a long overdue capstone to the distinguished judicial career of Judge Davis. I concur with the comments of the Alliance for Justice

Marie Failinger said...

The president needs to be sensitive to gender justice in the appointment of qualified candidates to the bench in these next years. There have been relatively few judicial appointments of women to the Circuit Courts of Appeals since 1995:
Second Circuit 2 of 8
Third Circuit 1 of 9
Fourth Circuit 1 of 5
Sixth Circuit 4 of 11
Eighth Circuit 0 of 9 (only one woman has ever sat on the Eighth Circuit)
Ninth Circuit 6 of 20
Tenth Circuit 1 of 9
Eleventh Circuit 0 of 4

For more information about the history of appointments of women to Circuit Courts of Appeal, see the case statement of the Infinity Project, http://www.hhh.umn.edu/centers/wpp/infinity/

Jeffrey L. Greenspan said...

I concur with the comment posted by Marie Failinger. However, I believe that one must evaluate the record and/or views of the proposed nominee in determining the acceptability of a nomination. Merely nominating a woman in order to say that you nominated a woman is cynicism at its worst. Witness the selection of Gov. Sarah Palin as the Vice Presidential nominee in a transparently cynical attempt to attract supposedly disaffected Hillary Clinton supporters to the Republican ticket. Of course this attempt failed, as Clinton supporters quickly realized that Palin's views were in no way compatible or even close to those of Clinton's.

The worst example of this type of cynicism in the judicial appointment process is probably Justice Clarence Thomas.

By the way, Judge Florence Allen, the only woman to have ever sat on the U.S. Court of Appeals for the Eighth Circuit, probably should have been the first woman United States Supreme Court Justice.

C. Bremer said...

In the past 117 years that the 8th Circuit has been in existence, we should have been able to find more than one woman qualified to serve. Judge Diana E. Murphy is the only woman to be appointed to the 8th Circuit. Judge Florence Allen, from Ohio, served on the 6th Circuit (and indeed, was highly qualified for that position, as well as the U. S. Supreme Court). I agree that it is insulting for all involved, and society, to think that a woman would be nominated "merely" due to gender. But haven't seen that emerge as a pattern yet.