Well the 113th Congress is over, and the tally on the number of Obama confirmed judges is in. While the most of the media has been focused Cuba, Sony and other "Hot Topics" (including CNN, the "Crisis News Network"), President Obama and Harry Reid have quietly managed to fill enough vacancies in the Federal Judiciary to result in a huge shift towards Democrats on the Bench which will have profound impacts for decades to come. All because of Reid's decision in November 2013 to implement the "Nuclear Option" to change the Standing Rules of the Senate so that cloture on debate over judicial nominations could be achieved with 51 instead of 60 votes, except for Supreme Court nominees (i.e., end debate on nominations with just 51 yes votes).
Join me after the jump /\ over the squiggle for the final numbers and there long term impacts. After all the depressing news like the 2014 election results and the Citi Bank Christmas present vote, I think what I have below may cheer you up a bit for the Holiday Season.
First, here are some of the astounding facts on the Obama-Reid judicial appointments from this great article by Sahil Kapur at TPM:
1. "In six years, he has appointed a whopping 307 judges, who will shape the law for decades after he leaves office. The final 12 district judges were confirmed in the closing night of the Senate session on Tuesday, Reid's final move before Democrats surrender control of the chamber."
2. "A total of 132 judges were confirmed in the 113th Congress — the most since the 1970s."
3. "Perhaps most significant is his appointment of 53 judges on federal circuit courts, which have the last word on most matters of law. When Obama took office, just one of 13 appeals courts had a majority of Democratic-appointed judges on the active bench. Today, nine of 13 appeals courts have a majority of Democratic appointees."
4. "Until November 2013, Obama lagged behind his predecessors in confirming judges, facing unusual delays by the Senate Republican minority. Then Reid and 51 Democrats triggered the "nuclear option" to scrap the 60-vote threshold for all nominations other than the Supreme Court, advancing some stalled nominations and kicking the process into overdrive. Since then, Obama has outpaced his two predecessors in confirming appellate court judges."
5. "In the last year, Democrats have confirmed 14 of Obama's circuit court nominees, half with fewer than 60 votes. The most salient impact of the "nuclear option" was to add three judges to the D.C. Circuit Court of Appeals, widely described as the second most powerful federal court, and a feeder to the Supreme Court."
Pretty impressive, wouldn't you say!
Even more impressive is the fact that these aren't just any old crop of Democrats who have been appointed to the Bench. Check this out (again from the TPM article).
"Before Obama, 59 percent of the active judges were white males. Now it's down to 51 percent. Also, Obama has named the first-ever Native American woman and Indian-American federal judge. He has placed more female and Hispanic judges than any previous president, and more Asian-American and openly gay judges than all other presidents combined."
AND
"The nuclear option also freed Obama to appoint some more liberal judges, including Nina Pillard to the D.C. Circuit, who drew comparisons to Justice Ruth Bader Ginsburg — and faced GOP opposition — for her work on gender equality. Also, Research by political scientists Robert Carp and Kenneth Manning finds that Obama's judges are "somewhat more liberal than the Clinton judges..."
As Adam Sandler would say
"Not too Shabby!"
Although one can never tell for sure what a judge will do when he/she takes his/her seat on the bench, chances are that a Democratic Judge appointed by a Democratic President will not go all "Scalia" on us. Another good sign for our side is the increase in the number of women and minorities in the lower courts. So, in general, its safe to say that the lower courts have just taken a significant shift to the left, especially with regard to the appeals courts who went from 1 out of 13 to 9 out of 13 having Democrat majorities, and the all important DC Circuit where President Obama got to add 3 more Dem. judges.
So what does this mean? In the short term (next 2 years), not much. We may see some cases in these lower courts go our way that may not of been in our favor before, especially with regard to marriage equality. I think we may see more rulings that will advance equality in new states, and we can be more assured that challenges to past gains in equality will be struck down by these more Democratic lower courts.
But the real benefits will come over the long haul. Slowly but surely and consistently, I think you will see more rulings by these lower courts go our way, both in terms of social and economic cases. Now I know what you're thinking. We still are stuck with generally a 5 to 4 Conservative Supreme Court, so what does it matter how the more progressive lower courts rule?
Yes, we will certainly see a number of progressive lower court rulings get overturned by the 5-4 conservative Supreme Court, and yes conservatives bringing suit will try to jump over some of these lower courts to go right to the Supremes. But the SC can't and usually doesn't take on every case which gets appealed to it, for basic logistical reasons. So they pick and choose what they consider to be the more high profile cases. This means we may see similar judicial results on these high profile cases as we have seen in the past (for the time being anyway). However, on the cases where the SC lets the lower court ruling stand, we may start to score some smaller, but important progressive judicial victories with these somewhat more progressive lower courts, especially in the case of the all important DC Circuit.
Finally, there are a couple other positive things that come out of President Obama getting a high number of judicial appointments though the post-nuclear Senate. First, President Obama and his Dem. successors will have a deeper bench of good progressive judges to pick from should a vacancy occur on the SC. Secondly, if the vacancy occurs among one of the 5 conservative judges and Republicans in the Senate block a Dem. President's nominees so as to avoid switching to a 5-4 progressive majority, the SC would be evenly split, 4 conservatives to 4 progressives. And, correct me if I'm wrong, but when the Supreme Court renders a 4-4 split decision, whatever the outcome of the case was in the lower court stands.
So Thank You President Obama and Senator Reid for giving me, and I'm assuming some other progressives a ray of hope for the future during this Holiday Season!