Obama and Appointing Liberal Judges

Jeffrey Toobin has a long article on President Obama and judicial appointments in the new issue of the New Yorker. The object: to ascertain whether Obama is appointing liberal judges. The answer is don't count on it.

First, the numbers:

Just eight months into his first term, Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench —more than ten per cent of the hundred and seventy-nine judges on those courts.”

Toobin writes Obama played it safe and "post-partisan" in his first choices: [More...]

Obama’s nominees up to this point have been “conventional, qualified, and undramatic choices, who were named, at least in part, because they were seen as likely to be quickly confirmed.....

One White House official tells him, “Our strategy was to show that our judges could get Republican support.”

As to Sotomayor, Toobin points out Obama expected her to have bi-partisan appeal:

However, the positioning of Sonia Sotomayor, Obama’s recently confirmed appointee to the Supreme Court, as a judge who appreciates the importance of judicial restraint—historically, a cornerstone of the conservative idea of jurisprudence—not only indicates a desire for Republican support, but also reflects “an acknowledgement that conservative rhetoric, if not conservative views, had become the default mode for Supreme Court nominees.”

And, Toobin says, Obama is more focused on Congress than the judiciary as an agent of change:

Perhaps most important, though, Obama’s choice of nominees reveals his emphasis on using the legislative branch, rather than the judicial, to insure rights. In his own career, “Obama chose politics over law” as a vehicle for social change....In “The Audacity of Hope,” he wrote, “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy .

His conclusion:

"An Obama Court would almost certainly defer more to congressional and other legislative judgments....Liberals who once saw judges as the lone protectors of constitutional rights are now placing their hopes on elected politicians like Obama.”

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  • Display: Sort:
    UGH^2 (5.00 / 2) (#1)
    by andgarden on Mon Sep 14, 2009 at 12:12:27 PM EST
    Why do Democrats insist on unilateral disarmament? WHY?!

    Not all Democrats (none / 0) (#3)
    by kmblue on Mon Sep 14, 2009 at 12:34:25 PM EST
    but Obama, certainly.

    This is why I supported HIllary (none / 0) (#10)
    by magnetics on Mon Sep 14, 2009 at 02:21:25 PM EST
    and almost sat out the general; (in the end Palin scared me into voting for Obama.)  Look up my old comments, where I repeatedly expressed the fear (still with me)  that Obama would (might still) nominate Cass Sunstein to the Supreme Court.

    I don't know where people ever got the notion this man was a progressive; anyone who would profess admiration of R. Reagan (except under duress, say at the funeral obsequies) does not qualify in my view.


    Congress as focus of change rather than (5.00 / 4) (#5)
    by MO Blue on Mon Sep 14, 2009 at 12:44:09 PM EST

    With Blue Dogs, Republicans, and big business writing our legislation, I don't find that reassuring.

    Judges with lifetime appointments remain long after political parties fall out of favor. I doubt that judges who receive Republican support will protect my interests let alone my constitutional rights.

    If we must count on elected politicians like Obama to be protectors of our constitutional rights, we are in deep trouble.

    As soon as we get a legislature worthy of faith (5.00 / 1) (#7)
    by ruffian on Mon Sep 14, 2009 at 01:30:29 PM EST
    ie. is responsive to the voters and not the big money,  does not abdicate its most important powers to the executive, can engage in honest debate...and on and on...I will be happy to trust them again to take the lead in protecting my rights and values. Until then I want the executive that I helped elect because he came closest to sharing my values to appoint judges that protect my rights, and not leave it to the judgement of a legislature that has proven itself not up to the task (PATRIOT Act, FISA, Iraq war, etc for examples).  

    Barack Obama (2.00 / 1) (#13)
    by DWCG on Mon Sep 14, 2009 at 08:45:27 PM EST
    Best Republican President since Nixon.

    By the way "centrist" and "bi-partisan appeal" is just another way of saying pro-corporate.

    Considering it is unlikely that there will be a (none / 0) (#2)
    by steviez314 on Mon Sep 14, 2009 at 12:16:55 PM EST
    CONSERVATIVE opening on the SC during his term, but Democrats SHOULD most likely keep control of Congress , I'm not sure this is bad strategy.

    Now, just do it.

    I don't think we need to worry about (5.00 / 7) (#4)
    by Anne on Mon Sep 14, 2009 at 12:43:59 PM EST
    replacing a conservative justice with one who might also have conservative leanings; what we should worry about is replacing a solidly liberal justice with an acceptable-to-Republicans nominee, who could shift the balance of power to the right for a long, long time.

    I remember that passage (none / 0) (#6)
    by ruffian on Mon Sep 14, 2009 at 01:23:24 PM EST
    In "The Audacity of Hope," he wrote, "I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy .

    It was around that point that I nearly threw the book against the wall. How is it possible for progressives to have too little faith in Democracy after watching how well it has worked in the last 12 years or so, at least? I would say no faith at all is entirely appropriate given the circumstances.

    Everyone (none / 0) (#8)
    by jbindc on Mon Sep 14, 2009 at 01:41:27 PM EST
    who is shocked or surprised, please raise your hand.

    Elections do have consequences (5.00 / 2) (#9)
    by MO Blue on Mon Sep 14, 2009 at 01:50:56 PM EST
    Sometimes even predictable ones.

    Sure wish I could predict (5.00 / 1) (#11)
    by Anne on Mon Sep 14, 2009 at 04:04:03 PM EST
    what numbers will be drawn in the MegaMillions lottery tomorrow night...having to settle for corectly predicting what the Obama presidency would look like isn't at all satisfying, is it?

    Not satisfying at all. (none / 0) (#12)
    by MO Blue on Mon Sep 14, 2009 at 04:52:47 PM EST
    At times, it is much more satisfying to be wrong. This is one of those times.