Obama's Judges

Jeffrey Toobin has written a trenchant analysis of President Obama's judicial-selection process in the September 21, 2009 issue of The New Yorker. Toobin discusses the difficulty of choosing candidates who will be successful in the confirmation process, and notes that "the only Obama nominee who has been confirmed to a lifetime federal judgeship is [Justice Sonia] Sotomayor." Obama has nominated seven individuals to the federal appeals courts, and ten individuals to the federal district courts. As Toobin says, "vacancies abound," but bringing Obama's nominees to a vote has proved to be impossible in today's highly partisan Senate. He also questions whether Obama's picks are really liberals, pointing to the "post-partisan language of the White House [which] sounded a lot like that of traditional judicial conservatism." Toobin points to White House statements extolling Sotomayor as "'a nonideological and restrained judge'"; emphasizing that she "'wrote expressly about the importance of judicial restraint' in her Senate questionnaire when she became a circuit-court judge'"; and stating that "her opinions 'reflect a keen understanding of the appropriate limits of the judicial role.'" To Toobin, the White House statements and Sotomayor's recent testimony before the Senate Judiciary Committee "amounted to an acknowledgement that conservative rhetoric [about judicial restraint], if not conservative views, had become the default mode for Supreme Court nominees." It is possible that "the use of conservative language by Sotomayor and her allies was merely an attempt to forestall Republican opposition," which was, of course, futile in the end as most Republicans voted not to confirm her. The article provides a fascinating insight into the recent history of the federal courts, and is must reading for anyone interested in how the judiciary might evolve under President Obama.