Judgement Call

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By some estimates, President Obama may have the opportunity to nominate one-third of federal appellate judges in his first term alone. Presented with such a stunning figure, thinkers and analysts have naturally begun speculate on the best strategy for Obama to employ in his nominations, and to offer advice. The Heritage Foundation assembled a panel of experts on March 11th to offer their insights.

One of the panel’s most interesting discussions centered on whether or not it would be beneficial for Obama to appoint liberal judges to the bench, as they would probably be more inclined to impose stricter limits on certain executive powers. The judges he appoints may come back to haunt him if he seeks to expand the scope of the government through executive leadership.

“Obama might come to regret it if he tilts the federal bench too far to the left,” said Stuart Taylor, a contributing editor at Newsweek. He cited as an example a recent case in which liberal judges voted to restrict the armed service’s sonar training in the Pacific Ocean in order to protect marine life. Although there had been no documented incidents of marine life being harmed by sonar training in the last forty years, Supreme Court Justices Ginsberg and Souter voted to restrict the President’s powers as Commander in Chief.

“If he wants to avoid seeing his national security policy nibbled to death by judicial ducks,” Taylor warned, the President should ask himself while considering nominees, “which group of lawyers and judges tend to be reasonably deferential to the President and Congress, and reasonably modest in expanding judicial power on national security issues?”

Walter Dellinger, a former Solicitor General under President Clinton, encouraged Obama to look for humility in those he nominates. “I think that the quality of humility is the one that is most lacking in our judiciary,” he said. “And I find that the absence of humility knows no party or ideological or political grounds, or monopoly.”

Dellinger expressed a desire to see judges appointed who were prepared to admit that they do not necessarily have all of the answers. In reading the Supreme Court’s opinion, the decision may seem like it was reached with very little thought, the answer being obvious. Judges might be more effective, and even influential, if they were to explain the thought process that led to decisions, pointing out the pros and cons, and discussing in simple terms the outcome of the deliberation.

The panel also agreed that President Obama should seek intellectual leaders for the bench. Jonathan Adler, a professor of law at Case Western Reserve University, emphasized the need for the Administration to focus on intellect in choosing nominees, especially regarding issues that are of special importance now. Giving prominent thinkers the opportunity “to turn their law review articles and their books into opinions could have a very serious effect on the course of the law,” he said.

Among the other key points of advice that the panel had to offer were that judges should have a demonstrated ability to cooperate with their colleagues; diversity is important among judges, but it has its limits; experience is more important than controlling the future, so nominate political veterans; focus on moderation.

These considerations, and others from across the political spectrum, will doubtless be taken into account by the Obama administration as it fills seats that are currently open and prepares for future nominations. The appointment of judges is consistently one of the president’s most lasting and influential contributions to the political landscape. To ensure a future of reform and rebuilding, there may be nothing more important to the Obama legacy than the judges he appoints.

Daniel Allen is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.