President Obama already has sketched out a left-leaning legal agenda for his second term on issues such as gun control, climate change and gay rights, but he is falling far short in nominating the judges to help him uphold it.
During Mr. Obama’s first term, judicial vacancies rose about 50 percent. That was in stark contrast to the first terms of President Clinton and President George W. Bush, when vacancies on the federal bench declined by 65 percent and 34 percent, respectively, according to an analysis by the liberal Alliance for Justice think tank.
“Since the end of the Bush administration, the percentage of Republican-appointed circuit court judges only dropped from 61.3 percent to 51.8 percent, and the percentage of Republican-appointed district court judges only dropped from 58.6 percent to 53.6 percent,” the report said.
Mr. Obama’s judicial nominees also tend to be older than the judges appointed by his predecessors. Federal judgeships are lifetime jobs, and many presidents try to stock the bench with relatively young jurists whom they hope will carry out their philosophy for decades.
“His nominees have been about five years older or so than his predecessor presidents, which is something that affects the legacy that you have,” said Douglas Kendall, president of the Constitution Accountability Center in Washington.
The average age of Mr. Obama’s appointees at nomination — 51.3 years — is “considerably higher” than the average age of any of the past three Republican presidents’ confirmed judges, the Alliance for Justice report said. It found the age difference for circuit court appointees “particularly glaring” — 3 to 5 years older than judges appointed by Republican presidents.
In eight years, President Reagan nominated more than 30 people younger than 40 to district court seats. Mr. Obama had nominated five by the end of his first term.
Said Carl Tobias, a professor at the University of Richmond law school, “Long after presidents have left the White House, the judges they nominate will be deciding cases. It is an important part of the legacy. I just don’t know how Obama looks at that. I don’t think he has articulated a very clear vision of that.”
After Mr. Obama was re-elected, the White House in November quickly sent the names of 10 judicial candidates to the Senate in hopes of breaking the stalemate. A handful were confirmed in the lame-duck session of Congress, but it’s not clear whether Mr. Obama’s coming nominees will have smooth confirmations in the new Congress.
While Mr. Obama’s judicial nominees are more diverse, they also tend to come from backgrounds that don’t necessarily point to a more liberal judiciary. The Alliance for Justice report said Mr. Obama’s appointees “have largely served in private practice, as judges or as prosecutors prior to their nominations, while fewer have been public defenders, legal-aid attorneys or non-governmental public interest attorneys.”