Obama tilts federal judiciary back toward Democrats

Richard Wolf | USA TODAY

WASHINGTON — The federal judiciary — long the province and priority of Republicans — is turning more Democratic.

The number of full-time federal judges named by Democratic presidents will draw even Friday with the number named by Republicans, following two retirements. The next of President Obama's nominees to replace a Republican-named judge will tilt the balance in Democrats' favor; that majority will grow for the remainder of his term.

The trend is particularly noteworthy at the nation's 13 appeals courts, 10 of which had a majority of Republican appointees by the end of George W. Bush's presidency. Although the Supreme Court remains 5-4 in Republicans' favor, judges named by Democratic presidents now dominate seven appeals courts, and two more are split down the middle.

"It is an important milestone," says Kathryn Ruemmler, the White House counsel. "It is a good indicator that the president is making his mark on the courts."

The federal courts — particularly the appeals courts — often set precedents in areas ranging from national security and economic regulation to abortion, immigration, voting rights, affirmative action, gun control and gay marriage.

"The impact that the president can have on the federal judiciary is perhaps the single-most important legacy issue for any president," says Doug Kendall, president of the Constitutional Accountability Center, a liberal advocacy group.

Both parties have fought wars over judicial nominees since 1987, when Democrats blocked Ronald Reagan's nomination of Robert Bork to the Supreme Court. The arch-conservative Bork was replaced by the more moderate Anthony Kennedy, now the GOP appointee who most often sides with liberals.

So fierce is the battle for judicial control that, on Thursday, Senate Republicans blocked confirmation of Obama's top choice to fill a vacancy on the federal appeals court for the District of Columbia Circuit. That is the nation's second most powerful court, with vast jurisdiction over federal agencies and regulations.

The court has eight active judges, split among Democratic and Republican appointees, and three vacancies. There are six "senior" judges who usually serve part-time — five of them appointed by Republican presidents.

Obama, who had one nominee for that court blocked by Senate Republicans before winning confirmation of Sri Srinivasan in May, introduced three more nominees in June. The Senate Judiciary Committee voted along party lines to confirm them, but Senate Republicans maintain the court doesn't need any more judges. On Thursday, they blocked action on Patricia Millett, 50, who has argued the second most cases before the Supreme Court among all female litigants.

"The reason they want to put more judges on the D.C. Circuit is not because it needs them," Senate Republican leader Mitch McConnell said. He quoted an administration ally who had acknowledged that "the president's best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit."

Liberal activists have another explanation for GOP obstruction. "It's the farm team," says Nan Aron, president of the liberal Alliance for Justice, of the court's historic role as stepping-stone to the Supreme Court. "Republicans have always fought holy wars over filling those seats."

Despite that setback, Democrats' steady progress on other appeals and district courts has not been denied. It's been a long time coming; Obama, preoccupied by two Supreme Court nominations in his first two years, got a slow start on filling lower court vacancies. Senate Republicans have been even slower to confirm his nominees.

Lining the federal bench with judges who enjoy lifetime tenure is one of the most significant perks of the presidency. Two-term presidents generally appoint nearly 40% of the 874 federal judges. George W. Bush's preference for ideological conservatives remade the judiciary in his image. Obama, with 208 confirmed judges so far, has preferred moderates.

Even as Democrats are poised to pull ahead, however, Republican nominees will maintain an outsize influence because of the number of judges over 65 who take senior status and continue to decide cases. While the number of active judges are tied at 390, there are 322 senior judges nominated by Republican presidents — more than half named by Reagan — compared with 233 Democrats.

For years, the problem for Democrats has been Republicans' dominance in presidential politics. GOP presidents have held the White House for 20 of the past 33 years and 28 of the past 45, dating to the Nixon administration.

"Their policy preferences should not be what's driving their decisions," says Carrie Severino, chief counsel for the conservative Judicial Crisis Network. "Unfortunately, we have a very politicized approach to the judiciary at this point, and that's detrimental."

Nationally, a few appeals court nominees have been blocked on both sides, and the pace of Senate confirmations has slowed with each new administration. About 10% of the nation's 179 appeals court and 677 district court judgeships remain vacant, a level not seen for two decades, according to the liberal Brennan Center for Justice at New York University School of Law.

While squabbling with Senate Republicans over those delays, Obama has been able to remake the judiciary in another way. Forty-two percent of his confirmed judges are women and 37% are minorities, far greater proportions than those of his predecessors.

That's of lesser concern to conservative groups than Democrats' emerging majority, one that can only grow through 2016. If the next president is a Democrat — say, Hillary Rodham Clinton — the impact would be huge.

"At that point," says Curt Levey, president of the conservative Committee for Justice, "there would be very few Republicans left on the courts."

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