Did the President’s Efforts To Pass the Affordable Care Act Limit His Efforts To Nominate Federal Judges?

August 18th, 2012

That’s what Charlie Savage suggests in this inside-baseball piece, showing that Obama lags far behind Bush and Clinton in nominating federal judges:

Mr. Obama’s record stems in part from a decision at the start of his presidency to make judicial nominations a lower political priority, according to documents and interviews with more than a dozen current and former administration officials and with court watchers from across the political spectrum. Senate Republicans also played a role, ratcheting up partisan warfare over judges that has been escalating for the past generation by delaying even uncontroversial picks who would have been quickly approved in the past.

But a good portion of Mr. Obama’s judicial record stems from a deliberate strategy. While Mr. Bush quickly nominated a slate of appeals court judges early in his first year — including several outspoken conservatives — Mr. Obama moved more slowly and sought relatively moderate jurists who he hoped would not provoke culture wars that distracted attention from his ambitious legislative agenda.

“The White House in that first year did not want to nominate candidates who would generate rancorous disputes over social issues that would further polarize the Senate,” said Gregory B. Craig, Mr. Obama’s first White House counsel. “We were looking for mainstream, noncontroversial candidates to nominate.”

Also, the President, a former quasi-academic, shied away from appointing Professors to federal judgeships:

Mr. Obama has also largely shied away from nominating assertive liberals who might stand as ideological counterpoints to some of the assertive conservatives Mr. Bush named. Instead of prominent liberal academics whose scholarly writings and videotaped panel discussions would provide ammunition to conservatives, Mr. Obama gravitated toward litigators, prosecutors and sitting district and state judges, especially those who would diversify the bench.

Savage also flashes back to impromptu comments Obama made in April 2010 (a month after the Affordable Care Act was signed into law, and when the law suits were already coalescing, and right before the Kagan nomination), in which the President was critical of conservative activists–somewhat prescient, no?

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Mr. Obama said.

“And in the ’60s and ’70s, the feeling was — is that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”

He added, “The concept of judicial restraint cuts both ways.”

The story also suggests that Kathleen Sullivan and Pam Karlan were in the mix, but never got the nod (presumably after the Goodwin Liu nomination flamed out):

The transition team’s list included district judges it considered shoo-ins for elevation — like David Hamilton, Mr. Obama’s first nominee, who had an unexpectedly turbulent reception — and several high-powered legal scholars, including Pamela Karlan andKathleen Sullivan, both of Stanford University, and Goodwin Liu of the University of California, Berkeley, people familiar with the list said.

Mr. Obama waited more than a year — when the health care fight was nearly over — before nominating Mr. Liu for the Ninth Circuit, based in San Francisco. He was arguably the first Obama nominee who was the ideological equivalent of some of the most controversial Bush nominees. After a bruising fight, Republicans ultimately blocked him with a filibuster.

Mr. Obama has not since nominated anyone else in his mold. Ms. Karlan — another prominent liberal academic — said the White House asked her in February 2009 if she was interested in being considered. She said yes but never heard back.

While she said she was not disappointed, Ms. Karlan expressed worries that if Republicans nominated outspoken conservatives but Democrats did not nominate equally liberal ones, the center of mainstream legal debate would shift to the right. “I don’t think I’m any more liberal than Antonin Scalia is conservative,” she said. “I believe in capitalism. I believe in America. I believe that we should have criminal laws. It’s not like I’m an anarchist.”