Skip to comments.Obama’s Judicial Legacy
Posted on 11/09/2012 1:40:16 PM PST by eagleye85
President Obamas first-term Supreme Court appointments make it seem unlikely to conservatives that the president will nominate judges over the next four years known for their judicial restraint. In fact, for progressives, judicial restraint takes on an entirely different description.
At least, thats the impression given by Ian Millhiser at a recent Center for American Progress event, in which he said that the frivolous lawsuit against the Affordable Care Act, also known as Obamacare, convinced him against judicial activism. And one thing I will say that that taught me is that judicial restraint is really important and that I think that we have an obligation as progressives to come up for a theory of where the line is that judges do not cross, said Millhiser. I no longer believe that my legislative agenda should beshould come from the Supreme Court, and, in that regard, I think that President Obamas judges have had an eye toward judicial restraint, and have had less of an eye to the sort of Warren Court jurisprudence, including his two nominees to the Supreme Court, and I think he deserves credit for that. Millhiser is a senior policy analyst for Constitutional Policy at CAP.
Doug Kendall, president of the Constitutional Accountability Center, followed up on Millhisers comments, saying that [ ]the central challenge we have as progressives is responding to a really radical constitutional visions being advanced by Justices in the Supreme Court and by judges in the lower court. Namely, Kendall objects to the D.C. Circuits treatment of Environmental Protection Agency (EPA) regulations to combat climate change. Thats why the courts are so important to President Obama, because we pass all this great legislation, we put in Lisa Jackson as an incredible EPA administrator, we follow the lawand then courts make it not happen, he said. The most important environmental decisionmaker in the United States is not the EPA, its not the Congress, its the eight judges, now, who sit on the D.C. Circuitand theres eight judges because there are three vacancies, not one of which was filled during the first term.
Adam Freedman, writing for City Journal, notes that Obama will begin his second term with about 90 vacancies to fill among 874 federal judgeships; he has already appointed 126 judges.
By the time his second term is over, Obama will probably have appointed over 300 judges and may approach the 379 appointed by Bill Clinton, continues Freedman. At a minimum, the president will likely replace the aging liberals Ginsburg and Breyer with younger models. But its also possible that Kennedy or Scalia, or both, could leave the bench during the next four years, presenting Obama with an opportunity to forge a liberal majority on the Court. This, for the speakers at the CAP conference, would be a change for Obama to forge his legacy.
There is almost nothing more important to the achievement of things like President Obamas efforts to combat climate change, argued Kendall at the CAP event. The only thing thats moving forward on that front are regulations passed by EPA under a 5-4 ruling by the Supreme Courtthat we barely wonthat we allowed the EPA to use the authority of the Clean Air Act to combat climate change. Theyre doing it, theyre doing it aggressively; it could all go by the wayside because of the D.C. Circuit. And it could all could go by the wayside because we have eight judges, not 11 judges, on that court.
He continued, He [Obama] doesnt have to appoint raging liberals in order to uphold statutes that protect the public and that protect our environment. He needs judges who are fair, and thats kind of the central challenge.
Whether Obamas nominations will prove fair or not concerns conservatives. In his article, Freedman voices his concerns over the impact that appointing a liberal bloc might have on judicial decisions. An invigorated and expanded liberal bloc on the Court could undo many important precedents, he writes. The Courts decisions, for example, protecting speech rights of corporations (Citizens United v. FEC), school choice (Zelman v. Simmons-Harris), and the right to bear arms (District of Columbia v. Heller and McDonald v. Chicago) were all decided on 54 votes. Challenges to Obamacare and other recent regulations are likely to present the Court with major decisions on religious liberty and federalism over the next few years.
The constitution is dead. That’s all there is to it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.