The Next 20

How Barack Obama Lost the Judicial Nomination Standoff

Or did he win after all?

Photo illustration by Slate. Photos by iStock.

There is probably nobody on Earth more surprised than Barack Obama that one of the lasting legacies of his presidency will be an unfilled Supreme Court seat. This was not the fight he chose or wanted.

It’s easy to forget how open Obama was, as a new president, about his unwillingness to do battle over the judicial branch. In March of 2009, Obama vowed to put the “confirmation wars behind us” and picked, as his very first judicial nominee, David Hamilton—a moderate, white, 14-year veteran of the federal bench—for an open seat on the 7th U.S. Circuit Court of Appeals. It should have been a snoozer. Obama was attempting to de-escalate what had become untenable trench warfare on both sides. Hamilton was as much a white flag as Obama could have mustered. As Michael Grunwald explained in Politico, the judge was “a long-serving, well-respected, ideologically indistinct district court judge in Indiana,” chosen quite deliberately by Obama to signal that he simply wasn’t planning to seat liberal firebrands on the federal courts; that he didn’t believe the judicial branch should be the principal lever of social change anyhow; and that his policy priorities—including the war on terror, the cratering economy, and health care and Wall Street reform—didn’t include a massive ideological overhaul of the federal bench. A White House official involved in the selection at the time told the New Yorker: “This is a new way of doing things. This is a post-partisan choice.” Comparing Obama’s selection of the unassuming Hamilton with the petting zoo of right-wing ideologues that George W. Bush had feted in the Rose Garden immediately after assuming office, Obama’s choice was tame.

As it turned out, the president had brought Wonder Bread to a knife fight. Despite Hamilton’s Midwestern averageness, Senate Republicans decided to wage war. The legal reasons to oppose him were slim. Hamilton was no liberal Bork. He wasn’t even a liberal Anthony Kennedy. Hamilton, the nephew of former congressman Lee Hamilton, had the unqualified support of his respected Republican home state senator, Dick Lugar, and that of the president of the conservative Federalist Society’s Indiana chapter. The day Hamilton was tapped, Daniel O. Conkle, a professor at Indiana University’s Maurer School of Law, told the Washington Post that Hamilton’s was “a noncontroversial appointment that, I suspect, will be supported by both Republicans and Democrats.”

But Senate Republicans would not be fooled by a fuzzy bunny in sheep’s clothing. Republican members of the Judiciary Committee boycotted Hamilton’s first confirmation hearing, claiming they hadn’t been given enough time to prepare. Then they threatened a filibuster and dragged his confirmation out for months.

His GOP opponents went after him for his association with the American Civil Liberties Union. Then they went after him for ruling in a 2005 case, Hinrichs v. Bosma, that the daily invocation in the Indiana House violated the Constitution because it so frequently referred to Jesus Christ. Hamilton had found that these “systematically sectarian” prayers were barred by the Constitution, which forbids the government from showing a preference for any religious denomination. So Hamilton, the son and grandson of Methodist ministers, warned the House to avoid mentioning Jesus Christ in the formal benedictions. Indeed, in a move presaging the Trump era, Republicans went further, arguing that Hamilton—who had written in a post-judgment motion that the Arabic word Allah is closer to a nondenominational God allowed by the Supreme Court, than is Jesus Christ—was thus anti-Christian and was advancing Islam instead. There was an open debate about whether he was truly a Christian, at which Hamilton helplessly explained that he really was. Democratic Sen. Evan Bayh, for whom Judge Hamilton had served as counsel when he was governor, was forced to respond that “he is not hostile to religion or Jesus Christ [and] was baptized and married by his father, a 40-year Methodist pastor.”

So fevered was the opposition to Hamilton that even John McCain and Lindsey Graham—two Republican members of the so-called Gang of 14, which had brokered a deal to prevent senators from deploying the “nuclear option” back in 2005—joined Sen. Jeff Sessions and other Republicans in attempting to filibuster  him. Wendy Long of the Judicial Confirmation Network labeled Hamilton “a hard-left political activist, [whose selection] signals that Obama does intend to push extreme liberals onto the bench and politicize the courts as we’ve never seen before.” Hamilton’s summer canvassing for ACORN—the Association of Community Organizations for Reform Now—as a college student in the ’70s was deemed all-but disqualifying. Sessions insisted, without evidence, that Judge Hamilton has “drive[n] a political agenda,” embracing the “empathy standard [and] the idea of a living Constitution.”

In the end, this was just theater. Months later, when it finally came time to vote, Hamilton was confirmed with a vote of 59–39. Lugar was the only Republican to vote yes. Hamilton has served with distinction since then. Sharia has not yet become the law of the land.

But the Sturm und Drang of the David Hamilton fight actually predicted the utter invisibility of the Merrick Garland nomination in 2016. The biggest not-story of the not-summer has been the not-hearings of the might-as-well-not-be Supreme Court nominee Garland for the Supreme Court slot still called, in most quarters, “Antonin Scalia’s seat.” If Senate Republicans in 2009 almost nitpicked the Hamilton nomination to death, they took obstruction to the next level in 2016 simply by pretending that Garland didn’t exist. No fake fights over deliberately misread rulings in Judge Garland’s lengthy judicial career. He just never happened. Perhaps Obama should have learned from the Hamilton fight that putting up a moderate, well-qualified nominee would not guarantee moderation from the other side.

And so, on July 20, Garland broke the record set in 1916 by Justice Louis Brandeis, who’d waited only 125 days between nomination and confirmation for reasons that had everything to do with him personally—his religion, his ideology, his professional experience. Judge Garland—whose name was all but absent from the speeches at both the GOP or Democratic conventions this summer—is the ghost in the confirmation machine. He is being blocked for reasons that have nothing to do with anything he has written or said, or his beliefs or credentials. He is being blocked because his opponents believe that the president who appointed him is not president, and that a broken court is better than a liberal one.

None of this happens without consequences for real people. Four separate Supreme Court cases ended in tied votes after Scalia]s death last term. One left the future of millions of immigrants in doubt. Another raises fundamental questions about the future of public-sector unions. And the Supreme Court has now ducked vitally important cases for the upcoming term so as to avoid yet more unsightly deadlock. The most pressing dispute of the 2016 term, which begins in October, currently involves the copyright over stripes and zigzags on cheerleader uniforms. Open dysfunction in the Senate has led to quiet dysfunction at the court. This is described as a “process” problem. Nobody is talking about that either.

Republicans like to carbon-date the demise of the norms governing Senate confirmation hearings to the failed nomination of Robert Bork in 1987. In their telling, that was the first time an eminently reasonable, intellectually powerful nominee was destroyed—both personally and professionally—by Senate Democrats and liberal interest groups, in a political act of carpet-bombing that led to the installation of a watery-kneed Anthony Kennedy at the high court. Republicans also say that then-Sen. Obama’s obstruction of then-nominees John Roberts and Sam Alito means that he deserves any and all obstruction he can get.

But the refusal to hold even a hearing or a vote for Judge Garland transcends the prior trend of ugly confirmation battles, with their gotcha questions, televised humiliation, and partisan campaigns to demolish a reputation. What we should have learned from the David Hamilton fight was that you didn’t even need a fight. Why put America through a sordid confirmation battle, when you can simply pretend that no vacancy exists, or that shorthanded courts aren’t hamstrung, or that Merrick Garland is simply a figment of the president’s imagination?

Obama never wanted the courts to be his defining issue. He believes in political victories, not legal ones, and his vision for the judicial branch has always been about diversity, reasonableness, and empathy, more so than doctrinal sea change. It’s now a truism that the Obama administration didn’t move fast enough or fight hard enough for its early judicial picks, and that the judges confirmed over his presidency were hardly ideological counterpoints to the Bush nominees that came before.

The real story is that Obama honestly never wanted this to be his fight. He truly believed he would be easing the friction in the confirmation wars. What we missed in reporting on the Obama judges, and a process that has now ground to a halt—and taken the highest court in the land with it—was that with the Hamilton nomination, the confirmation process had broken down already. What we should have seen seven years ago in the fight over David Hamilton was the flowering of the argument that even a moderate white man who raised no ideological red flags to speak of would be blocked simply because this president wasn’t entitled to name anyone to the federal bench.

Obama has seen 20 of his district court nominees filibustered in his eight years in office. Until he became president, such nominees had been filibustered only three times. White House Deputy Press Secretary Eric Schultz says this: “Today, there are 30 judicial nominees pending on the Senate floor—all of whom were approved out of the Judiciary Committee with bipartisan support. President Obama’s judges have waited, on average, almost two-and-a-half times longer to be confirmed after being reported by the Senate Judiciary Committee than President Bush’s judges did at this point in his administration—even though the vast majority of our judges are confirmed with overwhelming bipartisan support.” Today, as a result of Republican obstruction of Obama’s judicial nominations in the Senate, 35 courts are sufficiently shorthanded as to be designated “judicial emergencies.” When Obama took office in 2009 there were 12 such designations. Don’t be fooled when Senate Republicans insist that their stance on Garland is a singular obstruction arising from the sanctity of the Scalia seat. It’s the next step in the systematic dismantling of the federal bench to spite Obama.

So was Obama’s approach—picking mainly centrist, moderate jurists, even after Senate Democrats deployed the nuclear option in 2013 and progressives begged him to seat high-octane liberals—misguided?

Given the choice to fire up the base with a young, thrilling hard-left rock star, the president chose the man most Senate Republicans have showered with praise. The result? Nobody cares. Emma Shapiro, spokeswoman for the #WeNeedNine campaign, puts it bluntly: “Merrick Garland is an exceptionally experienced lawyer and the most qualified nominee to the Supreme Court ever. In a word, he is boring. He is uncontroversial—and in an election cycle that is marked with controversy every day, his unimpeachable experience doesn’t make news.” Obama could have made news in filling the Scalia seat with a story. He could have energized voters with a dazzling young talent and made the court the election issue it should be. But he ended his term as he started it, with the conviction that if he took the friction out of the system, the system could begin to function again. In this, it now seems, he was mistaken. Future presidents could be forgiven for examining this history and recognizing the nomination process for the politicized, media-centric process that it has become, and making their bids accordingly.

I hope they won’t. It’s true that a bolder pick might have resulted in more attention and conversation. But it’s not clear that such attention would get results. And for all the open seats on the federal bench, many of Obama’s nominees have been confirmed, just as Hamilton was after the fight. As a result of Obama’s selections in the federal appeals courts, nine of the 13 appeals courts now have majority Dem appointees, compared with just one when Obama first took office. Obama judges in the lower courts have been behind some of the most important legal shifts we have seen in recent years, from recent pushback in voter ID and reproductive rights cases, to the marriage equality revolution and the survival of the Affordable Care Act. And Obama has seated more female judges, more openly gay judges, and more minority judges than any president in history.

Most progressives have yet to decide whether Obama cared too little for the courts to politicize them, or—oddly enough—cared too much for the courts to politicize them. He may yet surprise us all by having threaded the needle right between the two. Obama’s subdued judicial picks are making a difference, and that may prove to be the case with Garland as well. And the fact that nobody is talking about it? That may turn out to be the sneakiest win of all.