Last week, the New York Times’s Charlie Savage published a characteristically excellent piece detailing the calculations and miscalculations that led to President Obama appointing far fewer judges to the federal bench than his two predecessors — and no judges who stand out as “assertive liberals who might stand as ideological counterpoints to some of the assertive conservatives Mr. Bush named. Savage’s entire piece is worth reading, but two aspects of it stand out. The first is the revelation that the Obama transition team selected a number of top progressive scholars as likely nominees to federal appeals courts, but plans to nominate all but one of these legal titans were eventually abandoned:
The transition team’s list included district judges it considered shoo-ins for elevation — like David Hamilton, Mr. Obama’s first nominee, who had an unexpectedly turbulent reception — and several high-powered legal scholars, including Pamela Karlan and Kathleen Sullivan, both of Stanford University, and Goodwin Liu of the University of California, Berkeley, people familiar with the list said.
Mr. Obama waited more than a year — when the health care fight was nearly over — before nominating Mr. Liu for the Ninth Circuit, based in San Francisco. He was arguably the first Obama nominee who was the ideological equivalent of some of the most controversial Bush nominees. After a bruising fight, Republicans ultimately blocked him with a filibuster.
Mr. Obama has not since nominated anyone else in his mold. Ms. Karlan — another prominent liberal academic — said the White House asked her in February 2009 if she was interested in being considered. She said yes but never heard back.
Obama’s decision not to nominate Karlan when his party enjoyed an enormous supermajority in the Senate is heartbreaking. Karlan is not simply one of the nation’s top constitutional thinkers, she is both a leading expert in voting rights law and one of the nation’s most skilled advocates for preserving the franchise. In light of the right’s campaign to disenfranchise poor and minority voters through voter ID laws, restrictions on early voting, voter purges and efforts to keep voters from even registering to vote, the federal bench would benefit tremendously from someone like Professor Karlan who devoted much of her career to protecting people’s constitutional right to vote.
Savage also explains that Obama’s decision not to pursue nominees like Karlan was part of a “deliberate strategy” to appoint “relatively moderate jurists who he hoped would not provoke culture wars that distracted attention from his ambitious legislative agenda.” It should now be obvious that this was a serious miscalculation. President Obama’s first nominee, Judge Hamilton, enjoyed the support of his Republican home state Sen. Dick Lugar (R-IN) and of the president of the conservative Federalist Society’s Indiana chapter. And yet he was not only filibustered by many Senate Republicans, he was bombarded with absurd claims that he gave Muslims preferential treatment to Christians or that he is unfit for the bench because he spent one month working for ACORN in 1979. However successful President Obama thought he could be by extending an olive branch to conservatives at the beginning of his presidency, it became clear very, very quickly that such an olive branch would be slapped away.
The epilogue to the Hamilton nomination is that Lugar, the Republican senator who accepted that olive branch, was defeated last May by a primary challenger who said that bipartisanship “ought to consist of Democrats coming to the Republican point of view.” Even if President Obama is elected to serve a second term, it is unlikely he will ever enjoy the supermajority he did during his first two years in office. If he hopes to make any real progress on judges, he will need to find a way to bypass senators hellbent on obstructionism.