How Obama transformed the U.S. Court of Appeals

by WorldTribune Staff, September 7, 2016

President Barack Obama’s liberal transformation of the U.S. Court of Appeals has gone largely under the radar as most attention has focused on the Supreme Court.

“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Texas Supreme Court Justice Don Willett said, “while the 13 federal courts of appeals handle about 35,000.”

President Barack Obama successfully has appointed more than 320 federal judges. Here, he speaks in the Rose Garden on June 4, 2013, while announcing nominees to fill vacancies on the U.S. Court of Appeals for the District of Columbia. They are, from left, Robert Leon Wilkins, Cornelia Pillard, and Patricia Ann Millett. After floor fights, the Senate eventually confirmed all three. (Photo: Kevin Lamarque/Reuters/Newscom
President Barack Obama speaks in the Rose Garden on June 4, 2013, while announcing nominees to fill vacancies on the U.S. Court of Appeals for the District of Columbia. / Kevin Lamarque / Reuters / Newscom

Many high-profile decisions are among those 35,000 cases, including the 4th Circuit Court of Appeals’ ruling against North Carolina’s voter identification law and its 2-1 ruling in favor of a transgender student’s right to use the boys’ restrooms and showers in public school. Two Obama appointees, Judges Henry Franklin Floyd and Andre Davis, outvoted Ronald Reagan appointee Paul Niemeyer.

“Obama was just very aggressive in getting those spots filled,” Carrie Severino, chief counsel for Judicial Crisis Network, told The Daily Signal.

A conservative stronghold under President George W. Bush, Severino said, the U.S. Court of Appeals for the 4th Circuit — which presides over West Virginia, Virginia, North Carolina, and South Carolina— “is now on the cutting edge of liberal activism.”

Liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals when Obama entered office. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent, The Daily Signal reported.

More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett said. “That’s a legacy with a capital L.”

Obama also has appointed 268 judges to U.S. District Courts, which are the lower federal courts, seven more than President George W. Bush.

Still, though, the Senate must confirm a president’s judicial appointments. And some conservatives say that Senate Republicans “handed over the keys to the judiciary without a fight.”

“These nominees can’t be characterized as anything but radical liberals, and the senators knew that when they were voting,” said Ken Cuccinelli, a former attorney general of Virginia who is now president of the Senate Conservatives Fund, a political action committee.

While there’s “no singular explanation” for how the majority of federal appeals judges flipped, Cuccinelli told The Daily Signal, Senate Republicans have adopted a strategy of “knee-jerk surrender” on nominees.

“A Democrat president has been in office for eight years, most of that with a Democrat Senate, including several years of a filibuster-proof Democratic majority,” a spokesman for Majority Leader Mitch McConnell responded.

The next president could tip the balance of the four remaining circuit courts of appeals still dominated by conservatives.

“It’s hands down the most fateful issue of the election,” said Willett, who is on Republicans’ short list for the Supreme Court.

“When Americans vote in November, they’re choosing not just a president but thousands of presidential appointees, including hundreds of life-tenured judges.”