Obama and the Judicial System

Current Supreme Court Justice Ruth Bader Ginsburg told law students in Boston that there would be an opening in the court "soon." The comments are interesting coming from someone who was diagnosed with pancreatic cancer last month. She made no mention as to when an opening might come or who it would be for.

This started me thinking about how Obama will be making appointments for any openings in the Supreme Court or any federal courts. This opens up an opportunity for him to alter the ideology of the judicial system in America. Due to the fact that three of the last four Presidents have been Republicans, the judicial system currently has a conservative tilt to it. However, Obama may change that.

(Taken straight from my law notes) There are four general factors which determine whether chief executives can obtain a federal judiciary that is sympathetic to their political values and attitudes.

1. Presidential Support for Ideologically Based Appointments – President must have a deep commitment to do so. Sometimes justices are chosen not for ideology, but for loyalty.

2. The Number of Vacancies to be Filled – the more judges a president can select, the greater the potential of the White House to put its stamp on the judicial branch.

3. The President’s Political Clout – the scope and degree of presidential skill in overcoming any political obstacles. One such stumbling block is the U.S. Senate. The president’s personal popularity is another element in the political power formula.

4. The Judicial Climate the new Judges Enter – the current philosophical orientations of the sitting district and appellate court judges with whom the new appointees would interact. New judges must respect the controlling legal precedents and the constitutional interpretation that prevail in the judiciary at the time they enter it, or they risk having their decisions overturned by a higher court.

In regards to Obama, the presidential support factor is entirely up to him. I expect he will end up choosing liberal leaning judges. The number of vacancies are out of his control, although he is aided by the fact that the majorities in the Senate and the House belong to the same party. He is more likely to get more nominations through. In terms of political clout, Obama entered the Presidency with a clear mandate, has high popularity, and has proven to be more political savvy than pretty much anyone else. As for the last factor, the current conservative nature of the court is an issue, but if Obama can get more liberal judges on the court this problem can go away.

Appointing judges is a very important power the executive branch holds. Some may not agree with this power, but it is what it is. As former conservative Chief Justice William Rehnquist said, there is no reason for the President not to. He has the power and he has a mandate behind him.

Have a good (and possibly more enlightened) day.