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.”
“This is particularly true for Obama’s circuit court nominees, who skew even more heavily to prosecutors and judges,” the group said.
The president gets high marks on diversity in the judiciary: 44 percent of his appointees have been women and more than 37 percent have been minorities. Mr. Clinton had the next highest record of diversity, with women representing 29 percent of his judicial nominees and minorities making up 24 percent. Mr. Obama also has appointed more openly gay judges, and three have been confirmed. Prior to Mr. Obama, only one openly gay nominee had ever been confirmed to a lifetime judgeship.
In his second inaugural address Monday, Mr. Obama laid out a second-term agenda that included combating climate change, promoting gay equality and strengthening the social safety net. He cited the Declaration of Independence’s promise of “life, liberty and the pursuit of happiness,” and said he would guide the nation on its “never-ending journey to bridge the meaning of those words with the realities of our time.”
Although he didn’t use the words “living Constitution,” Mr. Obama spoke of adapting and interpreting the nation’s founding document to meet the needs of modern society. Conservatives have criticized the president for exceeding his constitutional authority on a variety of fronts.
Mr. Kendall said the president “was embracing the Constitution as a guiding principle for where we are today.”
“I think it was actually a fairly conservative account,” Mr. Kendall said. “He said the Constitution has to be adapted to the times you live in.”
Mr. Tobias said halfway through Mr. Obama’s presidency, it’s still debatable how the president views the role of the judiciary.
“For me the problem is, what is his view of the world?” Mr. Tobias said. “A lot of people have been wrestling with how he views the judiciary. He’s been pretty candid in saying the heavy lifting should be done in the political branches, by the executive and by the Congress.”