The Judicial Bush Doctrine
President Obama needs to be more like George W. Bush.
Bush understood that a president’s longest-lasting legacy is often the judges who receive a lifetime appointment to the federal bench. He understood that another Republican will occupy the White House someday, and they will need a slate of potential nominees to the Supreme Court. And he understood that the judiciary can quietly implement an unpopular conservative agenda that would never survive contact with the elected branches of government.
We are still living the legacy of Bush’s appointments. The Supreme Court’s five conservatives trashed consumers’ ability to stand up to rapacious corporations. They greenlighted laws intended primarily to suppress minority, low-income, and student voters. They thumbed their nose at women’s right to equal pay for equal work. And, while the Court’s Citizens United decision did not enable Mitt Romney’s rich friends to buy him four years in the White House, it will create a generation of lawmakers who take their oaths of office owing wealthy benefactors a big favor.
Meanwhile, the lower federal courts serve as incubators for some of the right’s most ambitious plans. The case against the Affordable Care Act was widely—and correctly—viewed as frivolous until two federal judges at the trial level embraced it. Just a week before this year’s election, three conservative federal appellate judges enabled Ohio to disenfranchise voters who were directed to the wrong polling place by poll workers. Nearly four years after President Bush left office, his appointees on a powerful federal court in D.C. continue to gut environmental protection.
Bush’s greatest triumph, however, was filling the lower federal courts with many of the conservative legal movement’s brightest young minds. He understood that, if you nominate a long list of the kind of people you really want to be judges, you probably won’t confirm all of them. Senate Democrats successfully prevented a very conservative Bush nominee named Miguel Estrada from becoming a judge, a fact Republican senators still complain about. But severe conservatives like Brett Kavanaugh, Jeff Sutton, Priscilla Owen and Janice Rogers Brown were all confirmed to federal appeals courts despite devoting much of their careers to ideological activism.
On the day President Obama took office, there were 55 vacancies on the federal bench. Today there are 82. To be fair, much of the blame for these vacancies rests with Senate Republicans, who ran an unprecedented campaign of obstruction during President Obama’s first term. And the new Senate must fix this problem in January, when a brief window opens up permitting them to enact major filibuster reform with only 51 votes.
The administration cannot lay all the blame for the vacancy crisis at the filibuster’s feet, however. Obama has been genuinely slow to name nominees, and he’s been just as reluctant to throw his political weight behind his judges. In a particularly costly miscalculation, the president turned his most outstanding nominee, future California Supreme Court Justice Goodwin Liu, into a target by nominating him without also nominating several similarly young brilliant progressives at the same time. As a result, every Senate Republican knew where to point their guns, and Liu’s confirmation hearings quickly degenerated into execution by firing squad.
As his second term approaches, Obama must nominate a large slate of Liu-caliber nominees who can provide an intellectual foil to the Kavanaughs, Suttons, and Clarence Thomases of the world (and to those who question my decision to include Thomas on this list of conservative thought leaders, don’t. We underestimate him at our peril). Here are a few suggestions:
First, the single most important issue facing the judiciary right now are conservative attacks on voter enfranchisement; the last several years saw a rush of voter-ID laws, new barriers to voter registration, cut backs on early voting, and other efforts to make it harder to vote. Two names that have been mentioned in the press as potential Obama nominees stand out as the perfect additions to the federal bench in an era of widespread attacks on the right to vote.
The first is Stanford law Professor Pam Karlan, a leading expert on the Constitution and voting rights who spent much of her career defending the franchise in the federal courts. As a bonus, Karlan is also in a long-term committed relationship with a woman, so she would bring a perspective that is currently absent from a federal appellate bench that includes no openly gay members. The second potential nominee is Debo Adegbile, who as the acting head of the NAACP Legal Defense and Education Fund holds the same job once held by the nation’s first African-American justice, Thurgood Marshall. Among other things, Adegbile successfully defended the Voting Rights Act the last time it was threatened by the increasingly hostile Roberts Court.
Second, a closely related issue is the problem of partisan gerrymandering. Although votes are still being counted in some parts of the country, preliminary tallies indicate that Democratic House candidates received over half-a-million more votes than Republican House candidates during this year’s election. Yet, thanks to partisan gerrymandering, Republicans will enjoy a comfortable majority in the incoming House of Representatives.
The obvious candidate to confront this problem from within the judiciary is Paul Smith, who argued several important—if unsuccessful—challenges to partisan gerrymanders before the Supreme Court. The fact that Smith is also the nation’s preeminent gay-rights litigator—he argued and won the landmark Supreme Court decision striking down Texas’ “sodomy” law—is itself sufficient reason to place him on the federal bench.
Third, many of the Roberts Court’s most significant decisions have nothing to do with the Constitution. They are hypertechnical statutory decisions that enable businesses to force their workers and consumers into a privatized arbitration system that overwhelmingly favors corporate parties, or similar decisions eviscerating consumers’ ability to join together and fight powerful corporations via class actions. These cases rarely receive the same headlines as major constitutional showdowns, but they do at least as much harm to the middle class’s financial security as anything Speaker John Boehner or vanquished presidential candidate Mitt Romney has ever done.
Meanwhile, one of the dirty secrets of the legal profession is the fact it is much easier for an attorney to rise to the top of their profession—both in terms of pay and in terms of prestige—by taking a job at a massive corporate law firm than by spending their career protecting workers and consumers. As such, the federal judiciary is riddled with former corporate attorneys sympathetic to their former clients’ desires to immunize themselves from the law, while judges who cut their teeth representing plaintiffs are few and far between.
To address this imbalance, Obama should nominate more judges in the model of Judge Jack McConnell, a federal judge in Rhode Island confirmed despite scorched earth opposition from the Chamber of Commerce due to the fact that McConnell cut his teeth suing lead paint manufacturers and the tobacco industry. And when he’s done with that, the president should raid the partnerships at top union law firms to ensure that workers’ voices are represented on the federal bench as well.
Finally, the most important women’s rights attorney in American history is in the twilight of her career. As director of the ACLU’s Women’s Rights Project, Ruth Bader Ginsburg authored the brief in Reed v. Reed that convinced the Supreme Court to hold for the first time that the Constitution’s promise of equality extends to women. Just a few years later, her brief in Craig v. Boren convinced the Court to hold that government gender discrimination must be viewed with a skeptical eye by all judges in the future.
Justice Ginsburg continued this work since ascending to the bench, most recently in her landmark Ledbetter dissent which convinced Congress to restore the guarantees of equal pay for women that Ginsburg’s five conservative colleagues briefly took away. The Court’s conservatives are legitimately determined to roll back decades of progress on women’s rights, but Justice Ginsburg has ways to shut that whole thing down.
President Obama owes it to the American people to ensure that when Ginsburg does retire, he has lined the lower courts with judges who demonstrate a similar commitment to equality for all Americans. As I write these words, the next Ruth Bader Ginsburg is toiling in a legal aid office, a non-profit law firm or in a law school litigation clinic. The president needs to prepare her to be on the Supreme Court some day.
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