Diverse Obama picks changing face of federal judiciary

Slow erosion of conservative, Republican dominance of lower courts largely obscured by Supreme Court debate

May 03, 2010|By Paul West, The Baltimore Sun

WASHINGTON — Lost in the gathering debate over President Barack Obama's next Supreme Court pick, a profound shift in the federal judiciary is taking place below the high court.

Working methodically, and drawing sporadic fire from left and right, Obama is gradually reshaping the U.S. courts.

Already, he's tipped the balance of two appellate circuits to Democratic-appointed majorities, with a third about to flip. He also is choosing a larger proportion of women and minorities for lifetime federal judgeships than other presidents.

The diversity of his nominees is "striking. He's clearly, I think, eclipsed everyone, and so early in the administration," said Carl Tobias, a University of Richmond law professor who follows federal court issues.

A leading example of Obama's judicial makeover: the appeals court that serves Maryland, which is influential in national security matters.

Half of its judges were Republican appointees when Obama took office. One of them, J. Harvie Wilkinson III, argued, in a January 2009 article, against the prospect of a liberal Obama "takeover" of the court.

The Reagan appointee also noted the widespread reputation of the Richmond, Va.-based court, covering Maryland, Virginia, West Virginia and the Carolinas, as the most conservative in the country.

"I don't think you can say that anymore," said Gregory G. Katsas, a senior Justice Department official in the George W. Bush administration.

Obama nominees, including Judge Andre Davis of Baltimore, have given the circuit a 7-5 Democrat-appointee tilt that could grow to at least 10-5.

Nationwide, Obama is slowly eroding a partisan advantage Republicans created by holding the White House for 20 of the past 30 years.

"Few presidential decisions are more important than lifetime appointments to the federal bench," Alberto Gonzales, then George W. Bush's attorney general, said in 2006. "Judicial appointments often represent a president's most enduring legacy."

Whether a judge was appointed by a Republican or a Democrat "makes a huge difference," said Katsas, a former law clerk for Supreme Court Justice Clarence Thomas. While judges sometimes surprise presidents with their actions, Katsas said, "it's fair to say Obama's nominees are more likely to lean to the left than to the right."

The first black president, who once taught constitutional law, is already reducing the historic dominance of white men on the federal bench, by favoring women and minority nominees.

A recent study by the Alliance for Justice, a liberal advocacy group, found that Obama in his first year chose a higher proportion of female, black and Asian-American judges than other presidents during their terms.

That has been particularly true of his picks for appellate benches, the most powerful other than the Supreme Court. Of his first 19 nominees, six were women, five were African-American, two were Asian-American and two Hispanic; only six were white males.

Obama's initial 4th Circuit choice was Davis, a black U.S. district judge from Baltimore whose formal investiture ceremony was held Friday. The Senate has also confirmed Obama's second nominee to the circuit, Barbara Keenan, a white woman from Virginia.

The next nominees — one Hispanic, the other black — would, if confirmed, mean that white male judges were no longer a majority on the 4th Circuit.

Measuring Obama's impact on the ethnic and gender makeup of the federal judiciary is easier than gauging the effect he's having on ideology.

Conservative advocates and Republican politicians, in an effort to condition public opinion for the coming Supreme Court confirmation fight, are casting his appellate nominees as "activist judges."

The Republican argument is in line with a long-running attack theme that has kept Obama and the Democrats on the defensive.

Republican National Chairman Michael S. Steele, in a recent blog post, referred to the "out-of-the-mainstream judicial activists" Obama has chosen. A new Republican website highlights what the party describes as "shocking" examples of "liberal judicial activism" by Obama appellate nominees.

Liberals, meantime, have criticized from the other side.

Some are frustrated by what they regard as Obama's unwillingness, or inability, to begin duplicating a highly successful Republican strategy: planting young lawyers with strong ideological leanings on lower courts, then elevating them to the Supreme Court.

Ellen Lipton Hollander, recently nominated for a U.S. district judgeship in Maryland, fits the pattern that bothers critics on the left. The Maryland Court of Special Appeals judge from Baltimore will turn 61 this month.

She has long experience on the municipal and state bench, another hallmark of Obama judges that distinguishes him from recent presidents.

Judicial careerists are "very conservative choices, because you're not left to wonder whether this person will be a good judge," said Tobias.

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