Stanley Kutler: Obama Risks Losing His Judicial Prize





During the Civil War and Reconstruction era—best described as our “Second American Revolution”—the political parties marched in virtual lock step in consistent, rigid opposition to each other. Democrats steadfastly resisted the Republicans’ organic program for a new nation, including the Homestead Act, the land-grant college program, a protective tariff, a transcontinental railroad, a national currency and a reordering of judicial power.

Party discipline soon weakened, and legislators again comfortably crossed party lines. Even at the New Deal’s high point, the Republican minority, after opposing many of the details, often supported major reforms, such as Social Security. More recently, in the mid-1960s, conservative Midwestern Republicans helped break filibusters and the obstructionist tactics of conservative Southern Democrats (many still mired in “lost cause” nostalgia).

We have now regressed. Rarely in our history has partisanship been more narrow and rigid. The Republican Party is frozen in an obstructionist, anti-Obama posture, while offering no counterproposals. Our vaunted democratic process is dysfunctional. Party comity and bipartisanship are at an ebb. As a result, the process of nominating and confirming federal judges has broken down.

The opposition’s decision to stall and oppose President Barack Obama’s judicial nominations smacks of hypocrisy, and further draws into question the majority’s ability to govern.

Political majorities throughout our history have regarded the judiciary as a desirable prize. Thomas Jefferson had little opportunity to pack the Supreme Court, but he and his successors reshaped the judicial branch rather significantly from its Federalist origins in 1789.

Abraham Lincoln in 1862 told Congress he would not make any Supreme Court nominations until Congress readjusted the boundaries of the circuits—in those days a nominee had to be from the area for which he was chosen. Five of the then nine circuits consisted of slave states. Once the boundaries were redrawn and new judges appointed by 1869, the South found itself with only one circuit, exclusively consisting of old Confederate states. The Republican Party had its prize, and its nominees dominated the federal judiciary for decades. And so it was for the Democrats when Franklin D. Roosevelt named eight Supreme Court justices.

Ronald Reagan’s presidency began a concerted Republican campaign to capture the judiciary. Since the parties commonly regarded the judiciary as a prize, Democrats passively accepted most Reagan choices until he selected the ultraconservative Robert Bork, who stirred strong emotions across the political spectrum. Bork’s views offered a rallying cry for those who blamed the judiciary for progressive advances on race, women’s rights, civil rights and federalism, progress they ardently opposed. Bork’s equally committed opponents viewed his judicial philosophy as mere scholarly veneer, masking his commitment to reverse prevailing ideas.

Today’s arena for judicial nominations is the Bork battleground writ large. Words and phrases are twisted to become terribly distorted slogans of “judicial activism,” “originalism” and “judicial restraint.” The nominee’s life is parsed and affiliations are scrutinized in a desperate effort to find links to the ACLU, the Ku Klux Klan or Planned Parenthood. The opposition is loath to cede anything.

Nomination hearings are thinly disguised burlesque. Most questions involve nominees’ stands on the abortion precedents. The nominees find myriad ways to avoid answering such questions. Has anybody ever considered asking the nominees what they think of John Marshall’s great rulings, which remain basic to American law today? In the famous prep session for nominees, such material probably is not reviewed. During John Roberts’ confirmation hearing, some reference was made to his clerkship with William Rehnquist, but no one asked about his clerkship with Henry Friendly, an important, influential U.S. circuit justice. The confirmation hearings are carnival shows. Attempts to probe a nominee’s judicial philosophy are nothing but sham. This is not unique to high-profile Supreme Court nominees.

The recent political salvos and maneuvers to thwart Obama’s nomination of district Judge David Hamilton to the 7th Circuit Court of Appeals offer a preview of coming attractions for judicial nominations. Hamilton probably is representative of most judges, who work on a day-to-day basis with often unspectacular cases and decisions. The American Bar Association endorsed Hamilton as “well-qualified,” and the Indianan has won bipartisan praise from his state’s senators, Democrat Evan Bayh and Republican Richard Lugar.

“I’m at a loss to think that we could have someone of a greater ideological nature than Judge Hamilton,” retorted the ranking Republican on the Senate Judiciary Committee, Sen. Jefferson Beauregard Sessions III of Alabama, who likes to be called Jeff when he is on the national stage. He attacked Hamilton’s views on abortion, hurling the charge of “activism,” and he zeroed in on Hamilton’s 2005 ruling that the Indiana Legislature had breached First Amendment requirements for separation of church and state. Sessions found a spark for a filibuster and the predictable ideological firestorm.

Hamilton had ruled against the Legislature’s lopsided use of Christian clergy members, who delivered invocations 41 times, while one was by a rabbi and another by a Muslim cleric. Hamilton carefully ruled that “all are free to pray as they wish in their own houses of worship or in other settings,” but he added that “official prayers [must] be inclusive and non-sectarian, and not advance one particular religion.” The Court of Appeals’ overturning of the decision was on procedural grounds, a point unnoticed by Sessions.

Interestingly, the circuit justices overturned a Hamilton opinion that the First Amendment did not prohibit Indianapolis’ attempt to require parental consent for children’s access to video games of sexual content or extreme violence. The appellate court in effect supported First Amendment rights of children. Sessions has been strangely quiet on this case.

On Nov. 17, the Senate ended the stall and voted 70-29 to end the filibuster. Ten Republicans voted for cloture, including Lugar. Two days later, the full Senate voted 59-39, with Lugar casting the sole Republican aye vote. For all the fuss, the confirmation will probably have little political effect. The 7th Circuit appellate court, which serves Illinois, Indiana and Wisconsin, has seven judges nominated by Republican presidents and will have four, including Hamilton, chosen by a Democrat.

Sen. Sessions, the Republican-designated point man on judicial nominations, has a pertinent history. In 1986, Reagan nominated then-U.S. Attorney Sessions for a federal judgeship. The Republican-dominated Senate Judiciary Committee held a prompt hearing, but Democrats unearthed a sorry record. Thanks to Sessions’ dubious past of offensive racial remarks and notions, the committee rejected his nomination, 10-8. Sessions now is a man on a mission, supported by outside lobbying groups, to thwart Obama’s nominations. Former Reagan Attorney General Edwin Meese secured a letter signed by 24 leading conservatives, urging a filibuster against Hamilton, calling him “precisely the kind of liberal judicial activist who would use our federal courts as his own superlegislature.” Nine of the 24 signatories opposed judicial filibusters during the George W. Bush administration, yet they now urged GOP senators to filibuster against the Hamilton nomination. We need a scorecard to keep track of these players in their ever-changing positions.

Obama has barely attempted to secure judges of his liking. There are 98 vacancies for district and appellate courts, and only 19 pending nominees. A majority of federal judges were appointed by Reagan and the two Bushes.

The David Hamilton saga in the Senate is a foretaste of what we can expect. George W. Bush, in his first year as president, made 64 nominations to federal courts; Obama has made 26 in the 10 months since his inauguration, according to the Alliance for Justice. Bush had 18 confirmed choices in his first year; Obama has had seven so far, including Supreme Court Justice Sonya Sotomayor.

For the president, time is getting short. Presidential power often can be seen as the story of a steady erosion of support in Congress. Obama should not lose sight of his moment and his opportunity to shape (and reshape) the judiciary in his own image—just as his predecessors have done throughout history.


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