Full-Court Press

Obama needs to be more ideological—and stop nominating judges who anger his Democratic base.

Barack Obama
President Obama might win the policy fight, but he’ll need friendly judges to defend his accomplishments from conservative lawsuits and an organized right-wing opposition.

Photo by Chip Somodevilla/Getty Images

During his time in the Georgia state house, Michael Boggs targeted abortion rights, voted to keep the Confederate battle emblem on the state flag, and defended discrimination against same-sex couples as “premised on good Christian values.”

But, thanks to an agreement between the White House and Georgia’s Republican senators—Saxby Chambliss and Johnny Isakson—he’s now one of two judicial nominees expected to come to the Senate on Tuesday.

Liberal groups like NARAL Pro-Choice America aren’t happy, and they’re right; there’s no reason a Democratic president should nominate a reactionary to the federal judiciary, even if he’s better than the alternatives—it feels like a betrayal. With that said, it’s important to understand how we got to a place where a liberal president is backing a revanchist conservative to a lifetime position on the federal bench.

For the last five years, a combination of Republican obstruction and White House neglect has left the federal judiciary with a record number of vacancies. With the end of the filibuster on judicial nominees other than Supreme Court judges, however, one part of the problem was solved: Republicans had fewer avenues for hindering the process. But there were still obstacles, and at least one of them was built by the Democratic chairman of the Senate Judiciary Committee, Vermont Sen. Patrick Leahy.

Under his tenure, the Judiciary Committee has made unusual use of the blue-slip, a Senate tradition that, in Leahy’s words, allows the Senate Judiciary Committee chairman to “solicit views of home state senators when someone is nominated to be a judge in their state.” For Leahy, a negative blue-slip means the nominee is verboten, even if the other senator has given her consent to the nomination. And in that way, it’s become a wide backdoor for Republican obstruction.

It should be said that, in its original use, the blue-slip was a simple note on the acceptability of the nominee. But, as traditions are wont to do, its role changed with the circumstances. Under Mississippi Sen. James Eastland, for example, it became a tool for Southern Democrats desperate to keep pro-Brown judges from the courts. Indeed, during Eastland’s tenure as committee chairman any blue-slip in opposition to a nominee was an automatic veto.

After Eastland’s retirement in 1978, subsequent chairs abandoned the practice of an automatic veto, giving weight to the blue-slip—“one negative blue-slip would be ‘a significant factor to be weighed,’ ” said then-Sen. Joe Biden when he led the committee—but treating it as a recommendation, not a final judgment. Still, the general practice was that one positive blue-slip was needed for a nominee to move forward.

That changed in 1995 when Republicans took the Senate. Eager to stymie the Clinton administration, Republicans required two blue-slips for a nominee to go forward, which made it easier to kill Clinton’s nominees. With the election of George W. Bush, however, Republicans reverted to the one-slip rule, in order to expedite the process. It flipped again in 2001 after Sen. Jim Jeffords defected from the GOP caucus, giving Democrats control of the Senate, and then again in 2003, when Republicans won the chamber and announced a zero blue-slip rule, allowing hearings on nominees even if there wasn’t a note in favor of the candidate.

It’s in response to this that Leahy restored the two blue-slip rule when Democrats took the Senate in 2006 and he became chairman of the Judiciary Committee. Yes, the single-senator veto slows the pace of nominations, but, he argues, it’s more consistent than the haphazard approach of the past.

The problem, of course, is that it empowers Republican obstruction and gives substantial leverage to GOP senators, hence the nomination of Michael Boggs. In return for nominating Judge Julie Carnes to the 11th Circuit Court of Appeals and giving Boggs (and two other Republican-picked attorneys) a place on the Northern District Court of Georgia, Sens. Chambliss and Isakson would end a more than two-year hold on Jill Pryor’s nomination to the 11th Circuit.

Even with Boggs’ admirable work on Georgia’s Special Council for Criminal Justice Reform, this is a terrible deal. If it goes through, Republicans get four lifetime appointments to the federal judiciary, putting a stamp on the courts at a time when Obama should have the prerogative.

And while I admire Sen. Leahy’s commitment to the blue-slip rule and Senate tradition, I have to wonder if he’s just ignored the last five years of Republican radicalism. Simply put, there’s a strong chance that, if they take the Senate and the presidency, Republicans would abandon Leahy’s approach and return to the zero blue-slip rule, to facilitate the confirmation of Republican judges.

Which gets to why the Boggs nomination matters. It’s not just a slap in the face to Obama’s liberal supporters; it’s illustrative of the president’s nearly casual approach to the courts. On health care, climate change, and other concerns, Obama might win the policy fight, but he’ll need friendly judges to defend his accomplishments from conservative lawsuits and an organized right-wing opposition. But by nominating conservatives, he’s moving in the opposite direction.

It’s true that the president has recently improved his performance with nominations. But vacancies are still high, and there’s a good chance that the Republicans will win the Senate this year, ending any effort to fill them.

To secure his legacy, President Obama needs to act now, and make as many nominations as possible. And to that he’ll need Senate Democrats to shift gears on blue-slips and abandon the single-senator veto. Yes, tradition is important, but for a liberal presidency, it’s not nearly as important as ending the right’s three-decade dominance of the courts.