Controversies about the selection of a Supreme Court justice to replace Antonin Scalia have high importance for our nation.
A major newspaper reported on page one a few days ago: “Every time the party in the White House changes, there is a potential impact on the court as the new president tries to mold it when openings develop.”
However, most discussions that refer to “the court” (the Supreme court “Nine”) have so far missed the major point that President Obama has already transformed “the lifetime judiciary” — the approximately 900 appointed federal judges.
If John McCain had been elected in 2008 instead of Obama, the “Nine” and the impact of the other life federal judges would have been hugely different.
Voters too seldom recognize that the man or woman who gets elected President can shape our society for decades to come because of the people chosen for judicial positions.
McCain promised he would choose Supreme Court Justices like Scalia and Alito (two of the five most conservative Justices in nearly a century).
Because Obama won, “the Court” only has a 5 to 4 edge of Republican appointees.
If you are a conservative you might wistfully consider how your agendas could have been advanced with a 7 to 2 Republican dominance.
For the Supreme Court, Obama appointed two women, including the first person of Latina heritage.
Those initiatives also reflected what Obama has done regarding other federal judges; his appointments have reflected the most diversity of any presidency in our history.
Worthy of attention— and one of Obama’s most significant legacies — are the ways he has transformed the federal courts.
When he took office in 2009, Democrats had a majority on only one of the 13 Appellate Courts.
Now, in 2016, because of Obama’s reelection and his initiatives, Democrats have majorities on 9 of the 13 appellate courts.
President Obama’s impact has been profound notwithstanding that Republicans winning of the Senate in 2014 has almost totally halted his extension of Democratic nominated lifetime judges.
There is good logic for Karl Rove to be emphasizing that Republicans need a presidential candidate “with coattails.”
Rove’s concern is that a losing candidate, like Trump, could also cause Republicans to face defeat in the Senate.
Just imagine what a Democrat who succeeds Obama can do in four more years (or eight more years) taking office in 2017 with a responsive Democratic Senate to confirm nominees.
Democrats need a net gain of five seats to win the Senate.
If McCain had won in 2008, and got 2012 reelection, more than 70 percent of the 900 life time judges would be Republican appointees.
Because of Obama, nearly 55 percent of federal judges are now Democratic appointees.
Prior to the big GOP Senate win in 2014, Obama’s appointments were the most diverse in American history: 42 percent were female; 37 percent people of color; eight were “openly gay.”
Seven of Obama’s selections were Asian-Americans (Bill Clinton and George W. Bush each chose a single Asian-American during their eight-year terms).
In his first six years, Obama named 17 African-Americans; George W. Bush appointed seven during his eight years in office.
Since January 2015, the GOP Senate majority has not had the same power as before the filibuster rules were revised.
However, Republican Senate control of the judicial nomination process is almost as complete with “the blue slip process.”
Under this Senate “club” activity, the Senate majority refuses to hold hearings on any presidential nominee unless both senators from that nominee’s state approve [Republicans have at least one senator in many states; in effect, each of them has a veto on Obama nominees since 2015].
It is unfortunate that American voters are so inattentive to the impact of lifetime judges and to the election of the president who names them.
The winner of the 2016 election if he or she also gets a second term will have three more Supreme Court Justices over age 80 (Justice Scalia was 80 when he died).
If a Republican wins in 2016, he will surely also carry a Republican Senate and be able to start reversing Obama’s gains.
He will also shape “the Nine” for the rest of the lives of many adult voters.
Also consider what a Democratic president, elected in 2016 with a Democratic Senate, could do regarding the Supreme Court and the entire federal judiciary.
The Obama judiciary transformation would be carried to one of the most extensive levels in all of American history.
Well could the remarkable Alexis de Tocqueville refer to “The Aristocracy of the Robe” when, in the 1830s, he examined the effects of life judges for decades beyond any president who appointed them.
Charles Schumer, the next Democratic leader of the Senate, has noted that while the media and public have focused on Congressional legislative gridlock, “the most profound changes” were filling the bench. “This will affect Americans for a generation, long after the internecine battles on legislative issues are forgotten.”
Michael D’Innocenzo’s website is: michaeldinnocenzo.com
