A Legacy Litigated

President Obama better get his judges appointed. Because his legacy will be decided in the courts.

President Obama in the State Dining Room.

President Obama’s signature achievements will have to survive Republican-dominated federal courts.

Photo by Mark Wilson/Getty Images

President Obama is finally getting serious about the U.S. Court of Appeals for the District of Columbia Circuit. The federal appeals court is second only to the Supreme Court in importance, because it referees fights about the power of federal agencies and the rulings they make (and also because it’s a traditional feeder to the high court). After years of filibuster woe over Obama’s initial failed nomination to the court, the Senate confirmed Sri Srinivasan to the D.C. Circuit last week by a vote of 97–0. This marks the first appointment on the court since 2006 and the one and only cakewalk Obama can expect. The president reportedly will soon nominate three candidates simultaneously to fill the D.C. Circuit’s remaining vacancies.

This is a big dare to Senate Republicans, who have been calling the simple filling of the open spots “court packing” and parried with legislation to reduce the number of seats on the D.C. Circuit from 11 to eight. That would conveniently leave Obama with no more seats to fill and the court with four Republican appointees; four Democratic ones (including Srinivasan); and six senior judges (five of them chosen by Republicans) who pick up the rest of the workload.

Nominating three judges at once signals that Obama is finally heeding the call of the Democratic lawyers and law professors who have bemoaned his relative lack of interest in the lower courts since around Day No. 2 of his first term. The president taught constitutional law, goes the refrain. He knows how important judges are. Why isn’t he pushing his people through? Obama has been molasses slow about naming his nominees: There are currently 16 open spots on the federal appeals courts, and with the three D.C. Circuit choices that are on their way, the number of Obama nominees is still only nine. On the district courts, the president has named only 16 candidates for 64 open spots.

At the same time, liberal bafflement over Obama’s relative indifference toward the courts does not give Senate Republicans enough credit for their determination to throw up roadblocks. The filibuster used to be reserved for judicial nominees with a whiff of controversy about them, and during the presidency of George W. Bush, a bipartisan group of senators agreed only to filibuster judicial nominees under “extraordinary circumstances.” That deal is long gone: Republicans today are filibustering just about everyone except Srinivasan. As of last month, Obama’s nominees for the federal appeals courts have waited an average of 148 days for a confirmation vote following approval by the Senate Judiciary Committee, a wait more than four times as long as the average for President George W. Bush’s nominees. (The average wait for district court nominees has risen to 102 days from 35 for Bush.)

It’s worthwhile for Obama to finally push back because of the courts’ power over his legacy. If Obama doesn’t get his judges through and the bench becomes increasingly dominated by conservative justices for years to come, his failure to fill these vacancies could be the poison pill of his presidency. Law isn’t simply made by the Supreme Court. It’s also hammered out in the lower courts.

What exactly is at stake for Obama in the fight over judges? Here are five current court challenges that could derail key parts of his agenda. If you have another case to add to the list, send it to me at emilybazelon@gmail.com or post it in the comments below. Email may be quoted in Slate unless you stipulate otherwise. If you want to be quoted anonymously, please let me know.

1) Obamacare

Twenty-six states are not establishing the state-run health care exchanges that were supposed to be Obamacare’s primary engine for increasing access to health insurance. (Sigh.) In these naysaying states, the federal government is supposed to step in and create the exchanges itself. But there’s a catch. As Simon Lazarus explains in the New Republic, a lawsuit filed this month in federal court in Washington, D.C., argues that only state-run exchanges can offer tax credits and subsidies. Meanwhile, the Obama administration thinks that 80 percent of the people who buy insurance through the exchanges will need those subsidies.

Here’s the thinking behind the lawsuit, funded in part by the conservative Competitive Enterprise Institute. The problem, apparently, is a drafting error, but Congress doesn’t want to fix any of those. The Obama administration says the Internal Revenue Service has the authority to extend the tax-credit provisions in the Affordable Care Act to people who use federally run exchanges. But what if the judges who hear the case disagree? Without the tax breaks and subsidies, Lazarus argues, “the individual mandate, constitutional though the Court has declared it, simply won’t work.”

2) Climate change

President Obama is reportedly on his way to tackling climate change with an order the Environmental Protection Agency will issue to regulate the carbon dioxide spewing out of the nation’s power plants. The new carbon rules will surely be challenged in court, and as Jonathan Chait points out in New York, the legal fight will take place in the D.C. Circuit. That court is already hearing challenges to EPA rules “requiring states to address greenhouse emissions in their permitting requirements, emissions standards for hazardous pollutants resulting from lead processing, and even a pair of cases regarding the importation of polar bear hunting trophies,” Lazarus and Doug Kendall write in Grist. Happily for the president, the Supreme Court said in 2007 that the Clean Air Act (a gift from President Richard Nixon) gives the EPA the power to set standards for pollutants linked to climate change. But that doesn’t mean the new case would necessarily have an easy ride.

3) Immigration

When the Dream Act didn’t pass, Obama’s Department of Homeland Security stepped in with an order to stop deportations and grant work permits for some immigrant students raised in the United States—as many as 800,000. The idea is that the government can exercise its discretion to “defer action” on immigrants who arrived as children. Kris Kobach, Kansas secretary of state and a primary drafter of state laws that crack down on immigrants, filed a suit in federal court in Texas in October challenging the DHS decision on behalf of several federal agents who work on immigration enforcement, as well as Mississippi Gov. Phil Bryant. The plaintiffs say they’re being told to break federal law. They’re also challenging the Obama administration’s decisions not to deport other immigrants it has deemed to be low priority. The Supreme Court hasn’t been hospitable to this kind of claim: Last year, in striking down parts of Arizona’s immigration law (which Kobach helped write), the court talked about “the broad discretion” of federal immigration officials as a “principal feature of the removal system.” And Judge Reed O’Connor (a George W. Bush appointee) dismissed many of the claims in the suit. But last month, O’Connor said that one part of Kobach’s suit is likely to succeed, because DHS refuses to try to deport people when that’s what the law requires. The judge asked to hear more from both sides. Whatever happens in this case, it’s a precursor to the legal challenge that will surely follow the passage of any immigration bill in Congress.

4) Finance

Could Dodd-Frank Be Unconstitutional?” That’s the headline on a Wonkblog post from February about a lawsuit over the act Congress passed, and Obama signed, to rein in the excesses of the financial industry after the recession. Eleven states and three groups (including the Competitive Enterprise Institute!) have signed on to the suit, which claims that the Dodd-Frank Act violates the Constitution’s separation of powers and gives “unbounded power” to the Consumer Financial Protection Bureau (the agency that Republican senators won’t confirm Obama’s choice to head because they object to its existence). The suit also objects to the government’s authority to force failing companies to liquidate, saying the law doesn’t provide for enough advance warning. This suit was also filed in D.C. Maybe it will go nowhere—or maybe that depends which judges it lands in front of.

5) Recess appointments

This one demonstrates the damage the D.C. Circuit has already done to the president. Earlier this year, three of the court’s judges blocked Obama’s appointments from Jan. 4, 2012, to the National Labor Relations Board as well as the head of the Consumer Financial Protection Bureau. (Yes, see above.) On that day in January, the Senate was not in session, according to Obama, which meant he could exercise his constitutional authority to make recess appointments. The Senate was in fact on a 20-day holiday, but the Republican minority made sure to gavel the Senate in and out during that time. Obama dismissed these as “pro forma” sessions. The D.C. Circuit disagreed. Never mind that these sorts of midsession recess appointments have been a regular feature of Washington since World War II and common since the Reagan administration. Or that three other appeals courts have approved them. The D.C. Circuit ruling threw into doubt a year’s worth of NLRB rulings, as well as the leadership of the CFPB. National Labor Relations Relations Board v. Noel Canning, as the case is called, is now probably on its way to the Supreme Court. All 45 Republican senators have asked the justices to hear it and put a stop to the president’s “ongoing defiance.”

At least, from the president’s view, the D.C. Circuit likely won’t have the last word. But Canning should remind him why appointing judges to the lower courts matters: As is, dominated by the picks of past Republican presidents, they can erase Obama’s legacy before it even begins.