On Monday, a federal judge in Brownsville, Texas, threw a huge punch in the national fight over immigration policy. A George W. Bush appointee, Judge Andrew Hanen at least temporarily halted President Obama's executive orders shielding more than four million undocumented immigrants from deportation by prioritizing law enforcement and threats to national security.
Hanen's ruling reads at times like a press release from a conservative anti-immigration think tank. It isn't Hanen's first foray into anti-immigration politics — confirmed in 2002, he emerged as a strong immigration hawk only in 2013. In a ruling last August, he accused the Obama administration of pursuing a deportation strategy that "endangers America" and extends "an open invitation to the most dangerous criminals in society," The New York Times reports.
And it's hardly the only recent case of judicial activism by conservative federal judges. Next month, the Supreme Court is hearing King v. Burwell, a case that threatens to undermine a key provision of the Affordable Care Act based on one arguably out-of-context sentence in the famously long law. And that's ObamaCare's second high-profile trip to the nation's high court — in 2012, Chief Justice John Roberts veered from his conservative colleagues to uphold most of the law but allow states to reject ObamaCare's Medicaid expansion.
Famously, the five conservative justices on the Supreme Court have also seriously weakened campaign finance laws enacted by Congress and struck down a key part of the Voting Rights Act, based on legal reasoning that would have seemed out of the American legal mainstream 20 years ago. And, of course, the court's five conservatives essentially decided the 2000 election in favor of George W. Bush.
Conservatives used to loudly decry judicial activism, but it doesn't seem to bother them now that the trailblazing judges are more often than not ruling in their favor. That's no coincidence, according to an intriguing new study from political scientists Adam Bonica at Stanford and Maya Sen at Harvard's Kennedy School of Government.
The study found that lawyers tend to be more liberal than the general populace while judges tended to be more conservative than other lawyers, and the higher the court, the more likely the judge is to be conservative. Since judges are drawn from the larger pool of lawyers, something else must be going on here, Bonica and Sen argue, and they identify a long-running, strategic effort by conservatives to prioritize and politicize judicial appointments, especially to more politically important federal courts.
Since the judicial talent pool skews left, the evidence suggests that "viable conservative judicial candidates are strategically funneled toward judgeships in the nation's higher courts (including federal courts) by political elites, informal institutions, and formal organizations," Bonica and Sen write. "At these higher levels, decision
making becomes more political — particularly regarding the interpretation of delicate questions involving constitutional law, political questions, and electoral redistricting." They continue:
Perhaps the best example of this is the creation of the Federalist Society, the conservative-leaning intellectual organization that was founded in 1982 and has memberships at nearly 200 U.S. law schools. The Federalist Society represents a coordinated strategy of retaining and fostering conservative talent at the upper echelons of legal academia, with an eye toward shaping important federal courts. [Bonica and Sen]
The three most conservative justices on the Supreme Court have all belonged to the Federalist Society, and Roberts is listed in their 1997-98 leadership directory.
For whatever reason, liberals don't have a similar long-term judicial strategy. It may be that since most lawyers are apparently on the liberal end of the spectrum, Democrats have assumed the judiciary would reflect those leanings. Or perhaps, as Bonica and Sen argue, liberals don't benefit in the same way from a politicized judiciary. Conservatives might be better at long-range planning.
Or maybe liberals are playing catchup: Democrats didn't seem to pay much attention to judicial nominations until 2001. The Democratic base hasn't cared as much about federal judges as rank-and-file conservatives for a long time, if ever.
For Democrats, it's past time to realize that the federal judiciary is becoming more conservative in the political sense of the word (not the stare decisis sense). Conservatives are winning this battle. They'll see the results in rulings like Judge Hanen's immigration bombshell, dismissed as flawed by constitutional law professors who don't have Hanen's power.
Democrats don't have a lock on the White House by any means, and Republicans look set to control the House for at least a few more election cycles. If they care about policy, liberals may want to start paying attention to the third branch of the federal government. Soon.