Is Obama trying to stack the courts with liberals?

(Image credit: Chip Somodevilla/Getty Images)

last updated 8 January 2015

President Obama is planning to launch an aggressive push to get his judicial nominees through the Senate by simultaneously naming three judges to a key federal court, reports Michael D. Shear at The New York Times. And Republicans aren't happy about it, claiming that the president is trying to "stack" the judiciary with liberals.

By trying to fill all three vacancies on the 11-member U.S. Court of Appeals for the District of Columbia Circuit at the same time, Obama "will effectively be daring Republicans to find specific ground to filibuster all the nominees," says Shear.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

https://cdn.mos.cms.futurecdn.net/flexiimages/jacafc5zvs1692883516.jpg

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

In the last four years, the court has overturned Obama's initiatives on the environment, labor issues, and more, and liberals are pressuring him to do more to fill the vacancies and leave his mark on the court. But Obama's judicial nominees have been bottled up by the GOP, which is making unprecedented use of the filibuster to keep Obama from filling vacancies.

As a result, news of a tougher approach has been welcomed by some liberals, particularly if it leads to Senate Majority Leader Harry Reid (D-Nev.) using the "nuclear option," which would entail sidestepping the filibuster entirely to force the nominees through. "For those hoping for a more progressive federal judiciary, there's a lot to like in this plan,"" says Steve Benen at MSNBC. "Indeed, it's arguably overdue."

It's a pretty straightforward exercise — Obama has to nominate jurists to fill these vacancies, and he's apparently focused on three excellent, mainstream choices, who would ordinarily garner broad support. From the White House's perspective, if Senate Republicans act responsibly, great — the nominees will be confirmed, the D.C. Circuit will be at full strength, and the bench will be less conservative.If Senate Republicans act irresponsibly and block these nominees out of partisan spite, Democrats will have even more incentive to pursue the "nuclear option" and end this style of obstructionism altogether. [MSNBC]

Republicans say this isn't a fight over Senate rules or minority intransigence. They are painting it as a battle to prevent Obama from "stacking" the court, even though there are vacancies to be filled.

And they have their own plan to deal with the D.C. court. Under the GOP plan, the vacancies on the bench would be eliminated. That would leave the court split between four liberal appointees and four conservative ones, with retired judges preserving its conservative tilt. The open spots would be transferred to other courts.

Democratic aides reportedly say the proposal amounts to a naked attempt at court-rigging, akin to Franklin D. Roosevelt's failed attempt to change the size of the Supreme Court.

However, Jonathan S. Tobin at Commentary argues that Democrats are being hypocritical and that Obama is trying to radically change a court that has acted as a check on his agenda. "But that ambition is running head on into the determination of the Senate's Republican minority to use the filibuster rules to prevent a radical shift to the left in the judiciary," he says.

Considering that it was the Democrats who began this game of filibustering nominees to D.C. bench in 2001 when they frustrated George W. Bus's nomination of Miguel Estrada, the cries of GOP obstructionism from the left are more than a little hypocritical....Senate Republicans have every reason to use their power to slow down Obama's attempt to tilt the courts to the left. Rather than seeking a confrontation that he and his party are bound to lose, President Obama would do well to consider candidates for the courts that can attract moderate and conservative support rather than ideological liberals. Nobody is fooled by the Democrats' bluffing. [Commentary]

With opinions so sharply divided, this is shaping up to be an epic battle. Greg Sargent at The Washington Post warns that the nuclear option could become a reality:

Republicans will surely play a dangerous game here in which they will try to get away with just as much obstructionism as they possibly can, gambling that Reid ultimately won't be able to round [up] enough support among Senate Dems (some of whom are reluctant to change the rules by simple majority) to go nuclear. Republicans may be right, and Reid and Dems may not ultimately go through with it. But with tensions now escalating on not one, but two fronts — executive branch and judicial nominations — the possibility of miscalculation, and with it the chance that Dems will have no choice but to change the rules, is likely to grow. [Washington Post]

Harold Maass is a contributing editor at The Week. He has been writing for The Week since the 2001 debut of the U.S. print edition and served as editor of TheWeek.com when it launched in 2008. Harold started his career as a newspaper reporter in South Florida and Haiti. He has previously worked for a variety of news outlets, including The Miami Herald, ABC News and Fox News, and for several years wrote a daily roundup of financial news for The Week and Yahoo Finance.