One of the data points that should be considered in assessing the significance of the balance of power in the U.S. Senate is the effect on presidential appointments: not just to the executive-branch positions that can effectively be performed by “acting” personnel, but to life-time appointments to the federal bench. It’s a question whose answer has definitely changed after the invocation of the so-called “nuclear option” to allow for majority-vote confirmations of appointments to the Courts of Appeals and District Courts (though not the Supreme Court). In a long Jeffrey Toobin piece in the New Yorker on Barack Obama’s “judicial legacy,” this moment as a turning point is considered:
Republican intransigence about the D.C. Circuit nominees finally brought around even the most senior Democrats to the idea of filibuster reform. “I was probably the last person to agree to it,” Patrick Leahy, of Vermont, the president pro tempore of the Senate, and its longest-serving member, told me. “I believe the Senate should be independent, not a rubber stamp of any Administration. But this was a wholesale filibuster, completely unprecedented in two hundred years.” On November 21, 2013, the Senate voted, along party lines, to change its rules so that only fifty-one votes were necessary to bring up for a vote a circuit-court or district-court nomination.
Since then, the Senate votes have cemented Obama’s judicial legacy. With simple majorities, the Senate approved the three D.C. Circuit nominees, who joined a court that has frequently served as a stepping stone to the Supreme Court. (John Roberts, Antonin Scalia, Thomas, and Ginsburg all served on the D.C. Circuit.) The confirmed appeals-court nominees include several judges who conform to the Obama paradigm, in that they are all relatively youthful and impeccably credentialled, with indistinct ideological profiles: David Barron, a forty-seven-year-old Harvard Law School professor, and a former law clerk to John Paul Stevens, to the First Circuit; Pamela Harris, a fifty-two-year-old Georgetown law professor and another former Stevens clerk, to the Fourth Circuit; and Michelle Friedland, a San Francisco attorney active in the legal fight for gay rights (and a former clerk to Sandra Day O’Connor), who is forty-two, to the Ninth Circuit. According to statistics compiled by Sheldon Goldman, of the University of Massachusetts, the average age of Obama’s first-term appeals-court nominees was 53.5 years, and 49.4 for his second-term nominees. This predilection for younger nominees was a strategy of Robert Bauer, Obama’s White House counsel, and his successor, Kathryn Ruemmler. The judges are likely to serve for decades, and they constitute a farm team for prospective Supreme Court appointments.
The DC Circuit appointments, of course, also made possible the recent action vacating a three-judge panel’s Halbig v. Burwell decision that posed a deadly threat to the Affordable Care Act.
It’s not yet clear whether majority confirmations of lower court judges would still be possible if Democrats narrowly held onto Senate control, and what, exactly, Republicans would do to the confirmation rules if they gain narrow control. Having complained bitterly about the “nuclear option,” you’d think they’d go back to the old rules. But they will obviously look forward to the possibility of getting a Republican president’s nominees confirmed in the future. Either way, Obama’s window for making significant changes in the federal judiciary is closing. But it’s an effect that will be felt for many years.