[Editor’s Note: With the presidential election just over a month away, and with this election being perhaps the most critical in our adult lifetimes, I may turn to political themes more often than usual in the next several weeks.]
In 2008, candidate Barack Obama promised to “fundamentally transform” the United States of America. While he was successful in ramming through Obamacare, he has failed to deliver his radical change on several levels, thank goodness.
Yet after nearly eight years as president, he has delivered on one other front by reshaping the federal judiciary. This revolution has been comprehensive, dramatic and most Americans have no idea what has happened in our federal court system.
When Obama came into office in January 2009, liberal judges controlled just one of the 13 US Court of Appeals circuits. Some 55 successful appellate judge appointments later, liberal majorities now control nine of those appeals benches, or 70%.
So while Mr. Obama has not yet tipped the Supreme Court, his domination of the Appeals Courts and federal District Courts with liberal judges, with lifetime tenures, is nothing less than staggering and will affect important legal decisions for decades to come.
As the presidential election approaches, we hear a lot of talk in the media about how the next president could significantly rejigger the Supreme Court in the next 4-8 years, since it is widely believed that several sitting Justices will retire (or pass away) during that period.
What we don’t hear about is how President Obama has dramatically reshaped the Appeals Courts and District Courts with lifetime appointments of liberal-leaning judges. Americans need to know this ahead of the election, so that’s what we’ll focus on today.
Obama’s Liberal Judges Now Control 9 of 13 US Appeals Courts
President Obama may be struggling to tilt the balance of the Supreme Court – but that doesn’t mean he hasn’t already made his mark on the federal courts. Over the course of his two terms, Mr. Obama has appointed hundreds of judges to the lower federal courts, leading to a 70% majority of Appeals Courts now dominated by liberal judges.
While those nomination battles aren’t nearly as high-profile as they are for the Supreme Court, the impact of these lifetime appointments is just as pronounced. Previously viewed as one of the most conservative Appellate Courts in history, they have drifted significantly to the left, with Democrat appointees now outnumbering their Republican counterparts two-to-one.
Obama’s court appointees have already taken the progressive side in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving his own health reforms and carbon regulations.
These Obama appointments are really diverse; 43% of Obama’s judges have been women, shattering the old record of 29% under Bill Clinton; and 36% have been minorities, surpassing Clinton’s record of 24%. Obama has appointed 11 openly gay judges, when before him there was only one. He recently nominated the first Muslim judge but he is not likely to be confirmed before Obama leaves office.
The Fourth Circuit Appellate Court, for example, recently struck down North Carolina’s voter ID law, and also ruled in favor of a transgender student seeking to use high school bathroom facilities matching the student’s gender identity rather than biological gender.
The questions are: How did Obama get such liberal, politically correct judges confirmed; and why do we hear so little about this onslaught? Philip Wegmann over at THE DAILY SIGNAL wrote an excellent piece on just this subject in September, and I have reprinted it below.
“How Liberal Judges Took Control of 70% of US Appeals Courts
On the campaign trail in 2008, Barack Obama promised to fundamentally transform the United States of America. After nearly eight years as president, he has delivered on one front by reshaping the federal judiciary.
That revolution has been comprehensive, dramatic, and under the radar.
When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent. [Emphasis added.]
Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.
‘The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,’ Texas Supreme Court Justice Don Willett said, ‘while the 13 federal courts of appeals handle about 35,000 [cases per year].’
More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. ‘That’s a legacy with a capital L.’
Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges—seven more than President George W. Bush.
Obama didn’t push federal courts to the left by himself, though, since the Senate must confirm a president’s judicial appointments. And some conservatives complain that Senate Republicans handed over the keys to the judiciary without a fight.
‘These nominees can’t be characterized as anything but radical liberals, and the senators knew that when they were voting,’ said Ken Cuccinelli, a former attorney general of Virginia who is now president of the Senate Conservatives Fund, a political action committee.
While there’s ‘no singular explanation’ for how the majority of federal appeals judges flipped, Cuccinelli told The Daily Signal, Senate Republicans have adopted a strategy of ‘knee-jerk surrender’ on nominees.
Republican leadership balks at that characterization, arguing that they’ve spent most of their time engaging in guerilla-style campaigns against an entrenched, determined Democrat majority [from 2009 to 2014].
‘A Democrat president has been in office for eight years, most of that with a Democrat Senate, including several years of a filibuster-proof Democratic majority,’ a spokesman for Majority Leader Mitch McConnell told The Daily Signal.
While Republican opposition to Obama’s Supreme Court nominee, Merrick Garland, has remained consistent in the Senate, the strategy for appeals court nominees has fluctuated. Liberals describe it as aggressive, but conservatives belittle it as reserved.
There’s a decent case to be made for both interpretations.
A Republican minority in the Senate filibustered for months in 2013 to keep three Obama nominees—Patricia Ann Millett, Cornelia Pillard, and Robert Leon Wilkins—off the U.S. Court of Appeals for the District of Columbia.
The Senate eventually confirmed all three by narrow margins. But the GOP’s opposition was so stiff that, to overcome it, then-Majority Leader Harry Reid triggered a dramatic rule change known as “the nuclear option.” [Emphasis added.]
To overcome Republican opposition at the time, under the Democrats’ new rules federal judicial nominees can advance to a confirmation vote with the support of a simple majority of senators and without the threat of a filibuster. [Emphasis added.]
As a result, if a party holds the White House and a Senate majority, the president’s nominees are almost guaranteed confirmation.
But Republican antagonism to Obama’s nominees has not been constant.
While in the minority, Republicans often mounted little to no opposition to Obama’s court of appeals nominees. And since winning the Senate majority in the 2014 elections, Republicans have rubber-stamped two appeals justices—Kara Stoll for the Federal Circuit and Luis Restrepo for the 3rd Circuit.
As a result, Obama has fleshed out the judicial roster on the U.S. Court of Appeals, successfully appointing 55 of the 179 judges with little opposition.
Seven more of Obama’s appeals court nominees await consideration in the Senate. With a compressed congressional calendar and Election Day on Nov.