Call it the law of unintended consequences, but with its ruling in Citizens United, the U.S. Supreme Court may have just given President Obama additional motivation to take strong action to fill the 102 vacancies in the federal judiciary.
The breathless reporting of the State of the Union “confrontation” between President Barack Obama and the conservative members of the Supreme Court in the wake of the Citizens United v. FEC ruling has overshadowed a much more serious issue — congressional Republicans’ systematic blocking of the president’s judicial nominees.
While ultraconservatives regularly decry “judicial activism,” this criticism rings false. In fact, conservatives have long had the goal of packing the federal bench with ideological appointees. For years, Republicans have fought to place their own judicial activists in powerful judicial positions. The presence of Justices John Roberts and Samuel Alito on the Supreme Court represents the zenith of this strategy; and, as Citizens United proved, these justices’ activism can have a powerful, lasting legacy.
Now, faced with the prospect of seeing a president with a different judicial philosophy leave his mark on the federal judiciary, senate Republicans have a new strategy, according to Aron: Stall, stall, stall.
Senate Democrats must step up to the plate and call out Republicans on their strategy of slowing, stalling and stopping judicial nominations that do not pass ideological muster. In his comments in support of then-Supreme Court nominee Sonia Sotomayor, Rhode Island Sen. Sheldon Whitehouse characterized Republican criticism of her as “proof that conservative political orthodoxy is now [Republicans’] confirmation test, masked as concerns about judicial activism.”
You will not hear Republicans complaining as loudly about nominees to lower courts as they do about Supreme Court nominees. But, the truth is, they recognize the vitally important role lower-court judges play in the judicial system. They may not talk about it, but their actions speak volumes: They will do all they can to block these nominees from ever reaching the bench.
The Supreme Court’s thunder crack of a ruling in Citizens United, killing campaign finance reform, has also provided the president and his base with the clearest indication since Bush v. Gore of how much courts and judicial nominations matter. Conservative legal activists stand ready to challenge every aspect of the president’s agenda in court, just as soon as these measures get through Congress. Citizens United also provides a powerful rejoinder to the argument that conservative judges can be trusted to adhere faithfully to constitutional text and history. It’s a useful club for Obama to wield in responding to Republican claims that it’s his nominees who will be the judicial activists. It was Justice Sonia Sotomayor who stood on the side of constitutional text and history and judicial restraint in Citizens United, by voting to uphold a century worth of laws that place special limits on corporate election spending.
Earlier this week, Obama told Democrats that filling judicial vacancies would be “a priority.” Rather than hold nominees hostage, he said, “let’s have a fight about real stuff.” Maybe Citizens United will convince him that where the federal judiciary is concerned, he’s got a real fight on his hands already.