The Voting Behavior of Barack Obama's Judges: As Far Left as Some Opponents Say or Just Mainstream Liberals?
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Book chapter published in: Samuel Kernell and Steven S. Smith, "Principles
and Practice of American Politics," 5th ed. (CQ Press, Washington, DC. 2012).
9-4
The Voting Behavior of Barack Obama’s Judges:
As Far Left as Some Opponents Say or Just
Mainstream Liberals?
Robert A. Carp, Kenneth L. Manning, and Ronald Stidham
In recent years, politics in Washington have become as intensely partisan and
polarized ideologically as at any time in the past half-century. Partisanship
periodically flares up in its most virulent form during divided government,
when the Senate deliberates confirmation of the president’s judicial nomi-
nees. Democratic President Clinton complained continually that the
Republican Senate was not giving his nominees a fair shake. Similarly,
President Bush blasted Democratic obstructionism. President Obama has
issued similar complaints, but unlike his predecessors, he appears to have been
less attentive to judicial appointments and confirmation politics. The early
assessment of Obama’s federal district judges finds them following the long-
established pattern of tendering more liberal decisions than do their
Republican-appointed counterparts.
What is the ideological direction of the judges whom President Barack Obama
has appointed during his first three and a half years in office? Until now, virtually
all of the information about this question has been anecdotal in nature. Critics of
the president, who are virtually all Republican, have suggested that Obama’s
judicial appointees are ultraliberals who are hostile to the interests of private
property and to those who wish to be free of most forms of governmental
restraint and that the jurists are slavishly following the wishes of those who com-
prise the Democratic electorate—that is, racial minorities, gays, labor union
members, and so on. For example, in his run for the Republican nomination,
Texas Governor Rick Perry promised that, if elected, he would appoint only U.S.
Supreme Court and federal judges who will “reject the idea [that] our Founding
Fathers inserted a right to gay marriage into our Constitution.”1 And former
House speaker Newt Gingrich said in December of 2011 that as president, he
would abolish whole courts in order to be rid of judges whose decisions he feels
are out of step with the country. Gingrich furthermore suggested that “the pres-
ident could send federal law enforcement authorities to arrest judges who make
Source: This piece is an original essay commissioned for this volume.
420Robert A. Carp, Kenneth L. Manning, and Ronald Stidham 421
controversial rulings in order to compel them to justify their decisions before
congressional hearings.”2 While no one would contend that the views of these
two Republican candidates are characteristic of all members of the GOP, still it
is probably fair to say that most Republicans regard Obama’s jurists as too liberal
and as far out-of-center from America’s political mainstream. Democrats, on the
other hand, seem satisfied with the Obama appointees to the bench, while some
actually believe that he has been too reserved in not pushing a more liberal
agenda. For example, one law professor and former Obama colleague from the
University of Chicago, Geoffrey Stone, said of the Obama administration, “They
have been playing it a little too carefully. This administration has been very cau-
tious in terms of nominating people who are in any way subject to attack from
the right. We want to make sure that he’s willing to take some risks.”3
So which side is correct—conservatives who content that Obama’s appointees
are leading the charge down the proverbial “slippery slopes of socialism” or their
Democratic counterparts who are either satisfied with the status quo or who
would like to see Obama move the federal judiciary to the left? Empirical data is
always useful in addressing such queries, and such data will be the primary con-
tribution of this research endeavor. For in this chapter, we seek to shed some
light on whether or not President Obama is making ideologically based appoint-
ments and whether his judicial cohort is deciding cases in the manner anticipated
by most court observers. We have organized the chapter around two basic ques-
tions: What might we expect of the Obama administration’s potential to have an
ideological impact on the federal court? and What do the empirical data tell us
so far about the way that the Obama cohort has been deciding cases during the
three and a half years of his presidency?
Presidential Support for Ideologically Based Appointments
One key aspect of the success of chief executives in appointing a federal judiciary
that mirrors their own political beliefs is the depth of the commitment to doing
so. Some presidents may be content merely to fill the federal bench with party
loyalists and pay little attention to their nominees’ specific ideologies. Some may
consider ideological factors when appointment Supreme Court justices but may
not regard them as important for trial and appellate judges. Other presidents
may discount ideologically based appointments because they themselves tend to
be nonideological. Still others may place factors such as past political loyalty
ahead of ideology in selecting judges.
For example, Harry Truman had strong political views, but when selecting
judges, he placed loyalty to himself ahead of the candidate’s overall political422 the judiciary
orientation. On the other hand, Ronald Reagan, Lyndon Johnson, and George
W. Bush are examples of presidents who had strong ideological beliefs on many
issues and took great pains to select judges who shared those beliefs. What do
we know about whether Barack Obama is committed to making ideologically
based judicial appointments?
On the campaign trail four year ago, candidate Obama placed a lot of empha-
sis on the word change, although he was rather short on the specifics of that
vague term. Change might suggest that the new president would seek to chart a
very different course than his predecessor and that Obama would wish to appoint
an unabashedly liberal judiciary to counterbalance George W. Bush’s staunchly
conservative approach. However, President Obama’s nominees have so far not
generated unanimous antipathy from all persons of right-wing persuasion.
Indeed, in September 2009, Republican senator John Thune of South Dakota
called two of Obama’s nominees to federal judgeships in his state “good picks.”4
And as recently as July 2011, two of President Obama’s federal district court
nominees in Texas, Assistant U.S. Attorney Gregg Costa of Houston and U.S.
Magistrate David Guaderrama in El Paso, were recommended by both of Texas’s
conservative Republican Senators, John Cornyn and Kay Bailey Hutchison.5 It
was also reported that the State’s leading Democrats and the White House were
equally pleased with the judicial nominations. While not all lower court appoint-
ments have been this convivial, they have generally not reflected the hard-hitting
rhetoric of the current 2012 presidential campaign.
Somewhat similar dynamics have occurred with regard to Obama’s Supreme
Court nominations. In May 2009, the President selected Sonia Sotomayor as his
first Supreme Court nominee to fill the vacancy that occurred when Justice
David Souter announced he would retire from the bench. Sotomayor, who was
initially selected for a federal judgeship by President George H.W. Bush, was
the first Hispanic nominated to the Supreme Court and would become only the
third woman to serve there. Obama’s pick received plaudits for her rise from
humble family roots, her distinguished educational background, and her years
of experience as a federal district court and courts of appeals jurist. Although
Sotomayor was widely recognized as a Democrat, a review of her judicial and
legal record turned up no real instances of liberal ideological extremism.
Nevertheless, many Republicans criticized Sotomayor for comments she had
made in some past speeches about a “wise Latina” being better able to reach a
conclusion “than a while male who hadn’t lived that life.”6 These attacks yielded
little political fruit for the GOP, however. Given Sotomayor’s solid qualifica-
tions and her ethically unimpeachable background, Republicans were unable to
mount a serious challenge to her nomination. She was confirmed easily by a
vote of 68–31.7Robert A. Carp, Kenneth L. Manning, and Ronald Stidham 423 About nine months later, President Obama was presented with a second Supreme Court opening with the retirement of Justice John Paul Stevens. And again the President chose to downplay ideology and nominate a more mainstream, middle-of-the road candidate for this High Court office—Elena Kagan. Or, as one seasoned commentator quipped, “President Obama’s announcement of Elena Kagan “was perfectly boring—and that’s what makes her such a bold choice.”8 This commentator then added, “Nominating Kagan . . . required some courage. Obama defied those populists who said he should reach beyond the Eastern elite for somebody with more ‘real world’ experience. He defied liberal interest groups—his own base—that favored a more ideological liberal . . . . Instead, he chose brain over bio, sending to the Senate neither a compelling American story nor a liberal warrior but a superbly skilled, nonideological builder of bridges.”9 On August 5, 2010, the Senate confirmed Kagan’s appointment by a vote of 63–37. We now return to our original question: does the evidence suggest that President Obama is trying to move the courts’ center of gravity to the far ideo- logical left of center? In reality, there is virtually no evidence for that proposition. The indication is that the Obama administration is generally trying to avoid acri- monious political battles by appointing mainstream Democrats and eschewing nominees with especially controversial pasts. Furthermore, the elevation of Sotomayor to become the first Latin American to serve on the Supreme Court and the nomination of Kagan to increase the number of women on the Court suggests that the Obama administration may be following in the footsteps of George W. Bush and Bill Clinton in seeking to increase the diversity of the judi- ciary. And ethnic and gender diversity may not be the only goals that the Obama While House has in mind. One administration official noted that “the unifying quality that we are looking for is excellence, but also diversity, and diversity in the broadest sense of the word. We are looking for experiential diversity, not just race and gender. We want people who are not the usual suspects, not just judges and prosecutors but public defenders and lawyers in private practice.”10 Not only does the evidence indicate that Obama has not been extremely ideo- logical in his judicial nominations, some expert observers have even questioned how important judicial selection is to the Obama administration. One group of observers noted, “The surest key to understanding the politics, processes, and outcomes of the Obama judicial selection record in the 111th Congress is the recognition that judges were not seen as a priority by those closest to the President. Judicial selection was not a major focal point in the administration’s legislatively driven domestic policy agenda nor was it seen as a ‘legacy’ issue. There was a failure to understand that the judiciary would inevitably become particularly central to the very legislative agenda (health care reform) that was the President’s greatest priority.”11
424 the judiciary
In sum, when we consider the bipartisan support that Obama’s nominees
have received in some instances, the relatively few cases of outright rejection of
Obama’s judicial picks, the paucity of discussion by the White House about
pushing the courts in a directly leftward direction, and the occasional grumbling
by some about the lack of enthusiasm exhibited by the administration toward
judicial nominations, it is difficult to conclude that Obama has made ideology a
paramount priority in selecting judicial nominees. To be sure, Obama has largely
appointed reliable fellow party members to positions on the bench. But this
makes him no different than most prior presidents, and the evidence so far sug-
gests that Obama is approaching his responsibility of filling court vacancies in a
rather familiar fashion.
The Number of Vacancies to be Filled
A second element affecting the capacity of chief executives to establish a policy
link between themselves and the judiciary is the number of appointments avail-
able to them. The more judges a president can select, the greater his potential to
put his stamp on the judicial branch. For example, George Washington’s influ-
ence on the Supreme Court was significant, because he was able to nominate ten
individuals to the High Court. Jimmy Carter’s was nil because no vacancies
occurred during his term as president.
The number of appointment opportunities depends on several factors: how
many judicial vacancies are inherited from the previous administration (Clinton,
for example, was left with a whopping one hundred lower court vacancies—14
percent of the total—by his predecessor George H.W. Bush), how many judges
and justices die or resign during the president’s term, how long the president
serves, and whether Congress passes legislation that significantly increases the
number of judgeships.
Historically, the last factor seems to have been the most important in influenc-
ing the number of judgeships available, and politics in its most basic form perme-
ates that process. A study of proposals in thirteen Congresses to create new
judgeships tested the following two hypotheses: (1) “Proposals to add new fed-
eral judges are more likely to pass if the same party controls the Presidency and
Congress than if different parties are in power,” and (2) “Proposals to add new
federal judges are more likely to pass during the first two years of the president’s
term than during the second two years.” The study author concluded that his
“data support both hypotheses—proposals to add new judges are about five
times more likely to pass if the same party controls the presidency and the
Congress than if different parties control [each] and about four times more likelyRobert A. Carp, Kenneth L. Manning, and Ronald Stidham 425
to pass during the first two years of the president’s term than during the second
two years.” He then noted that these findings serve “to remind us that not only
is judicial selection a political process, but so is the creation of judicial posts.”12
When Barack Obama assumed the presidency in 2009, he inherited 59 judicial
vacancies—44 at the district court level and 15 in the courts of appeals. Democrats
who controlled the Senate in the final years of the George W. Bush administra-
tion were in no mood to approve the judicial nominees of the then-unpopular,
lame duck president. President Obama thus came into office with a sizable num-
ber of vacancies to fill. However, the number was not as high as that which
greeted George W. Bush when he took the reins of power in early 2001. At that
time, Bush was presented with 29 courts of appeals and 62 district court vacan-
cies. Still, with 59 judicial positions open, Obama had the opportunity to make a
good start in filling the bench with judges who share his philosophy.
Despite this initial opening opportunity for the President, the record indicates
that he has been slow to fill many of these judicial vacancies and he has been sub-
jected to much criticism for this lack of enthusiasm and activity. As of December 1,
2011, there were some 82 unfilled judicial vacancies, 15 at the appellate court level
and 67 in the district courts. Indeed, the Obama administration has been continu-
ally criticized by court observers as being too slow in the judicial appointment
process. Two court watchers at the Washington Post noted, “Federal judges have
been retiring at a rate of one per week this year, driving up vacancies that have
nearly doubled since President Obama took office. The departures are increasing
workloads dramatically and delaying trials in some of the nation’s courts.” And
later they observed, “Since Obama took office, federal judicial vacancies have
risen steadily as dozens of judges have left without being replaced by presidential
nominees. Experts blame Republican delaying tactics, slow White House nomi-
nations, and a dysfunctional Senate confirmation system.”13
Despite the ponderous way in which the Obama administration has made
judicial appointments so far, as well as the hurdles of the Republican Senate con-
firmation process, the Obama mark is slowly being made in the judiciary. As of
mid-January of 2012, there were 787 active trial and appellate court judges and
an additional 522 senior status jurists, making a total of 1,309. Of these 787 active
judges, President Obama had appointed 124 (none of whom had left their posi-
tions), which represented almost 16 percent of the total at the time. This is in
keeping with the percentage of recent presidents. For example, former President
George W. Bush appointed about 20 percent of the active judiciary during each
of his terms, and President Obama should be able to meet or come close to that
mark in the months remaining in his term.
What about the possibility of Congress passing a new omnibus judges bill that
would give the President the opportunity to pack the judiciary with men and426 the judiciary
women who share his values? Such an enactment greatly enhanced President
Kennedy’s and President Carter’s ideological impacts on the judiciary.
Unfortunately for President Obama, he has had no such luck. Measures have
been introduced in Congress to create a few new emergency judicial positions,
but between the budget-cutting mentality that pervades the current Congress,
and the sharp political divisions that characterize this body, it is not likely that
Congress will offer the President the bonanza of an omnibus judges bill that
would serve to increase his impact on the federal judiciary.
So what is one to conclude about this second predictor of whether President
Obama will potentially have a substantial impact on the ideological direction of
the federal judiciary—the number of vacancies he can fill? The data suggest that
in terms of pure numbers, the President is having about an average set of oppor-
tunities to make an ideological impact on the federal bench. That means that
after his first term, about one in five federal judges will likely bear the Obama
stamp—a factor of some consequence.
The President’s Political Clout
Presidential skill in overcoming political obstacles is also a factor in leaving a mark
upon the judiciary. The U.S. Senate can be a stumbling block. If the Senate is
controlled by the president’s party, the White House will find it much easier to
secure confirmations. Sometimes when the opposition is in power in the Senate,
presidents are forced into political horse-trading to get their nominees approved.
For example, in the summer of 1999, President Clinton was obliged to make a deal
with the conservative chairman of the Senate Judiciary Committee, Orrin Hatch.
To obtain smooth sailing for at least ten of Clinton’s judicial nominations that
were blocked in the Senate, the President agreed to nominate a Utah Republican,
Ted Stewart, who was vigorously opposed by liberals and environmental groups.
The Senate Judiciary Committee can be another roadblock. Some presidents
have been more adept than others at easing their candidates through the jagged
rocks of the Judiciary Committee rapids. Both Presidents Kennedy and Johnson,
for example, had to deal with the formidable Senator James Eastland of
Mississippi, then committee chairman, but only Johnson seemed to have had the
political adroitness to get most of his liberal nominees approved; Kennedy lacked
that skill. Even Clinton, despite his considerable political acumen, was never able
to parlay those skills into much clout with the conservative and often hostile
Senate Judiciary Committee.
The president’s personal popularity is another element in the political power
formula. Chief executives who are very well liked by the public and who commandRobert A. Carp, Kenneth L. Manning, and Ronald Stidham 427 respect among opinion makers in the news media, the rank-and-file of their politi- cal party, and the leaders of the nation’s major interest groups are much more likely to prevail over forces that seek to thwart their judicial nominations. How would we assess President Obama’s capacity to make an ideological impact on the federal judiciary in light of this “political clout” variable? On this dimension, the data are clearly of a mixed nature. Although the President was elected by a decisive majority of the electorate and he carried both houses of Congress, his glory days were short-lived. The high unemployment rate and the economic recession, which had dogged his predecessor George Bush, have not abated as fast as many Americans had hoped. The high approval numbers given to the President during his early days in office have fallen to only 48 percent as the nation enters this presidential election year. And while these approval ratings are certainly not at record-low levels, they still detract from the President’s over- all political clout. It is true that President Obama was able to get a number of major pieces of legislation passed during his first two years in office, but this arguably was due just as much to skillfulness by the Democratic leadership in Congress over their large majorities and a clear willingness by Obama to com- promise at key points as it was sheer political clout. Furthermore, the Obama legislative agenda ground to a virtual halt after the 2010 elections, when Republicans made big gains and regained control of the House of Representatives. There have been some notable successes in the international and foreign pol- icy realm, notably the killing of Osama bin Laden and other key Al Qaida opera- tives and also the withdrawal of American troops from Iraq. President Obama also was successful in getting the New START (Strategic Arms Reduction Treaty) nuclear arms treaty passed. But domestic economic issues seem to be on the minds of most Americans, and on this variable, the President’s support level has been decidedly mixed. In terms of Obama’s success vis-à-vis the Senate Judiciary confirmation pro- cess, the President has had some modest success. As Sheldon Goldman and his team of researchers have noted, “It is a fair generalization to note that the Senate Judiciary Committee facets of the processes . . . offered, at least on the surface, a picture of relative calm. The Committee did its job, with the greatest obstruc- tion and delay of Obama nominees occurring at the floor stages of confirmation. Behind such a generalization are layers of nuance that shaped both committee and floor activity and, at times, the lack thereof.”14 These observers further noted that this “surface cooperation” was somewhat deceptive. They com- mented that “it would be a vast overstatement to suggest that the minority members on the committee simply ‘went along’ with the administration’s picks. To the contrary, there was a pattern of regularized and systematic opposition that had an impact on the processing of virtually all Obama nominees, but that
428 the judiciary
impact could be seen, in most instances, in processing delay, not definitive and
resolute obstruction save for a handful of . . . nominees.”15
What about the President’s success in obtaining Senate confirmation for his
judicial nominees? Here there was moderate success—but at the price of con-
tinual delays. Republicans used a variety of tactics to delay floor action in the
Senate. For example, there were constant refusals of unanimous consent to floor
votes on nominations, the extensive use of holds on nominees by individual
senators, and, “when played out to the end game of opposition, utilization of the
threat of filibusters and the necessity for cloture votes to bring a nominee to the
floor.”16 What’s more, Obama suffered a high-profile failed nomination when
Republicans used a filibuster to block his nomination of Goodwin Liu to a posi-
tion on the Ninth Circuit Court of Appeals.17 Still, the bottom-line confirmation
numbers for the President were not disastrous. Looking at the figures for his first
two years in office, 44 of his 78 nominees to the district courts (56.4 percent) and
15 of his 22 nominees to the courts of appeals (68.2 percent) were confirmed by
the Senate. Nevertheless, these confirmation numbers are at the low end of the
spectrum, and they bespeak the increasing levels of partisanship, which have
interjected themselves into the confirmation process of lower court judges in
recent years. As the Goldman research team observed, “for the district courts,
the proportion of confirmed Obama appointees was the lowest since the first half
of [George] W. Bush’s second term (the 109th Congress), which in turn was the
lowest proportion in over 75 years and likely historically.”18
So what is one to conclude about the impact of the President’s political clout
in terms of his success in shaping the judiciary with his court appointments?
Despite the President’s diminished political effectiveness that quickly followed
his election victory and despite the delaying tactics of Republican opponents on
the Judiciary Committee and in the Senate, a decided majority of his nominees
were confirmed. One might speculate that had his nominees been more left-of-
center, his success scores would have been lower than they were. But, still, the
mainstream Democrats that were approved by the Judiciary Committee and by
the Senate were surely more liberal than those who would have been appointed
by a modern-day Republican president.
The Judicial Climate the New Judges Enter
A final matter affects the capacity of chief executives to secure a federal judiciary
that reflects their own political values: the philosophical orientations of the cur-
rent sitting district and appellate court judges with whom the new appointees
would interact. Because federal judges serve lifetime appointments during goodRobert A. Carp, Kenneth L. Manning, and Ronald Stidham 429 behavior, presidents must accept the composition and value structure of the judi- ciary as it exists when they take office. If the existing judiciary already reflects the president’s political and legal orientations, the impact of the news judicial appoin- tees will be immediate and substantial. However, if the new chief executive faces a trial and appellate judiciary whose values are radically different from his own, the impact of that president’s subsequent judicial appointments will be weaker and slower to materialize. New judges must respect the controlling legal prece- dents and the constitutional interpretations that prevail in the judiciary at the time they enter it or they risk being overruled by a higher court. That reality may limit the capacity of a new set of judges to go their own way—at least in the short run. Consider, for example, President Reagan’s impact on the judicial branch, which continued to be substantial for a long time. By the end of his second term, he had appointed an unprecedented 368 federal judges, 50 percent of those on the bench. When he entered the White House, the Supreme Court was already teetering to the right because of Richard Nixon’s and Gerald R. Ford’s conserva- tive appointments. Although Jimmy Carter’s liberal appointees were still serving on trial and appellate benches, Reagan found a good many conservative judges from Nixon and Ford on the bench when he took office. Thus he had a major role in shaping the entire federal judiciary in his own conservative image for some time to come. George H.W. Bush’s judges had a much easier time making their impact felt, because they entered a judicial realm wherein well over half of the judges already professed conservative Republican values. On the other hand, President Clinton’s impact on the judiciary was slower to manifest itself, because his judicial nominees entered an arena in which more than 75 percent of the trial and appellate court judgeships were held by the appointees of GOP presidents with very conservative orientations. When George W. Bush entered the White House, 51 percent of the federal judges had been appointed by Democratic presidents. At the end of his eight years in office, roughly 60 percent of lower federal judges bore the Republican label. Thus, when Obama assumed office, the judiciary was clearly dominated by those who did not share his mainstream Democratic values. What is the scorecard like in January of 2012, as President Obama is about to complete his first term on office? As of January 2012, 45.3 percent of “active” federal judges have been appointed by Democratic presidents, while 54.7 per- cent have been selected by Republican chief executives. When one factors in judges with “senior judge” status, the numbers are fairly similar: for all federal jurists on the bench today, 43.3 percent are Democratic appointees while 56.7 are those chosen by GOP presidents.19 With Obama expected to add about 5 percent of additional Democratic judges to the bench during the remainder of his term (a large number of whom will likely be replacing conservative Republican
430 the judiciary
retirees), it seems fair to predict that by the end of 2012, the federal bench should
be split almost evenly between Democrats and Republicans. The real question,
then, is whether or not the President will be reelected. If so, by the end of a sec-
ond Obama term, the judiciary will very likely be distinctly more Democratic—
perhaps by some 20 percentage points—by the end of his second term in 2016. If
Obama loses his reelection bid to a Republican, the federal bench will almost
certainly once again be dominated by the GOP and by a similar percentage. This
makes the presidential election of 2012 a particularly critical one in terms of the
future ideological direction of the federal judiciary.
Sources and Definitions
Let us now turn to a quantitative analysis of the decision making by Obama
judges. Before we examine the data we have collected, we need to say a word
about the data’s source, and offer working definitions of the terms conservative
and liberal. The data on trial courts were taken from a database consisting of
more than 102,000 opinions by over 2,200 judges published in the Federal
Supplement from 1933 through early 2011. Included in this overall data set were
91 decisions handed down by judges appointed by President Barack Obama.20
Only cases that fit easily into one of thirty case types and that contained a clear,
underlying liberal-conservative dimension were used. This included cases such
as state and federal habeas corpus pleas, labor-management disputes, questions
involving the right to privacy, and environmental protection cases. Excluded
were cases involving matters that do not exhibit a clear ideological dimension
such as patent cases, admiralty disputes, and land condemnation hearings. The
number of cases not selected was about the same as the number included.
In the realm of civil rights and civil liberties, liberal judges would generally
take a broadening position; that is, they would seek in their rulings to extend
those freedoms. Conservative judges, by contrast, would prefer to limit such
rights. For example, in a case in which a government agency wanted to prevent
a controversial person from speaking in a public park or at a state university, a
liberal judge would be more inclined than a conservative to up hold the right of
the would-be speech giver. Or, in a case concerning affirmative action in public
higher education, a liberal judge would be more likely to take the side favoring
special admissions for minority petitioners.
In the area of government regulation of the economy, liberal judges would
probably uphold legislation that benefited working people or the economic
underdog. Thus, if the secretary of labor sought an injunction against an
employer for paying less than the minimum wage, a liberal judge would be moreRobert A. Carp, Kenneth L. Manning, and Ronald Stidham 431
disposed to endorse the labor secretary’s arguments, whereas a conservative
judge would tend to side with business, especially big business.
Another broad category of cases often studied by judicial scholars is criminal
justice. Liberal judges are, in general, more sympathetic to the motions made by
criminal defendants. For instance, in a case in which the accused claimed to have
been coerced by the government to make an illegal confession, liberal judges
would be more likely than their conservative counterparts to agree that the gov-
ernment had acted improperly.
What the Data Reveal
In Figure 1, we compare the total “liberalism” scores of the judicial cohorts
appointed by nine of the most recent chief executives, four Democrats and five
Republicans.21 The data indicate that 51.1 percent of the decisions of Barack
Figure 1. Decisions Scored as Liberal by Judges Appointed
by the Ten Most Recent Presidents
60
Percentage liberal decisions
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30
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Judge’s appointing president432 the judiciary
Obama’s jurists have decided in a liberal direction. This puts him around seven
points ahead of the Clinton cohort and very similar to the judges appointed by
Lyndon Johnson and Jimmy Carter, whose liberalism scores were respectively
51.7 and 50.5. The Obama jurists are clearly more liberal than those of his
immediate predecessor, George W. Bush, whose liberalism score was the low-
est for all presidents in our data set (going back to the time of Woodrow
Wilson)—35.3 percent. The Obama judges are also more liberal than the judges
of other Republican presidents, whose ideology scores are as follows: Nixon,
37.9 percent; Ford, 41.8 percent; Reagan, 35.5 percent; and George H.W. Bush,
36.2 percent.22
We previously noted that noted that President Obama has not directly called
for moving the judiciary’s center of gravity to the ideological left, and we have
observed that he has been accorded no more than an average number of judicial
openings to fill. Likewise we concluded that his political clout vis-à-vis the
American public and the Senate has been only at moderate levels but that he has
had the opportunity to move the lower federal judiciary closer to a partisan
equilibrium by increasing the number of Democratic jurists on the bench by
about 10 percentage points for every two years in office. So far, President
Obama has been able to fill most of his judicial vacancies with mainstream
Democrats, and such Democrats are on the whole more liberal than typical
members of the GOP. It therefore seems fair to conclude that the President has
moved the center of gravity of the federal judiciary somewhat toward the left.
Despite this, it is worth noting that at this point, the ideological middle position
of the lower federal judiciary still remains conservative, given the substantial
partisan advantage Republicans had when Obama took office (around 62 per-
cent of sitting judges at that time had been appointed by Republican presidents).
The early evidence indicates that Obama’s judges are mainstream liberals enter-
ing a bench that has been dominated by conservatives and, as such, his judicial
nominees are moving the overall direction of the federal judiciary toward the
political center.
Traditional versus Nontraditional Judges
One final subject of interest is the decision-making patterns of Obama tradi-
tional appointees (that is, white males) compared with those of his nontradi-
tional appointees (women and minorities). Such comparisons are increasingly
meaningful, because recent presidents have been appointing an increasing
number of women and minorities to the federal bench. For example, President
Clinton appointed the largest number of women and minorities of any previousRobert A. Carp, Kenneth L. Manning, and Ronald Stidham 433
Democratic president—51 percent—and President George W. Bush chose
the largest percentage of such individuals of any prior Republican chief
executive—34 percent. President Obama has appointed around 62 percent of
his lower court jurists from among the ranks of women and/or racial minori-
ties, and this has included a number of judges who are openly gay.23 Conventional
wisdom often suggests that women and minorities might be somewhat more
liberal in their voting patterns than their white male counterparts, but the
actual scholarly evidence on this tends to be conflicting and inconclusive.24
Regardless, at this point it is clear that a large majority of President Obama’s
judicial nominees have been from groups that have been historically under-
represented on the bench. What’s more, if the current trajectory continues,
President Obama is on track to have a greater percentage of women and/or racial
minorities as his appointees to the federal judiciary than any other president in
U.S. history.
Conclusion
We have explored the ideological impact that President Barack Obama has had
so far on the decision-making patterns of the trial court judiciary. To perform
this task, we sought to determine the degree to which Obama and his appoint-
ment team have possessed a strong commitment to make ideologically based
appointments, the number of vacancies to be filled, the extent of the President’s
political clout, and the ideological climate that his judicial cohort is entering.
Our estimation is that President Obama is having a notable impact on the
ideological orientation of the federal judiciary. Although cautious and pragmatic
in his approach to judicial appointments, and downplaying ideological factors, it
is nonetheless clear that Obama is appointing mainstream liberal Democrats to
the federal bench. And with today’s sharp partisan cleavages, such individuals are
decidedly more left-of-center than members of the GOP. (The “liberal
Republicans” and the “conservative Democrats” of the past have become rare
breeds in the highly charged politics of 21st-century America.) By the end of his
first term, Obama will likely have appointed about 20 percent of the federal judi-
ciary. Given the distinctly conservative tilt of the federal bench when he began
office, in this way, he will almost certainly be effective in shifting the ideological
balance of the courts to the political center. If President Obama is defeated for a
second term, he will still have made his mark on the judiciary, albeit a modest
one. On the other hand, if the President is reelected, then his judges, coupled
with the Clinton cohort still on the bench, should give moderately liberal
Democrats a firm control of the federal bench.434 the judiciary
Notes
1. Will Weissert, “Perry Signs Pledge on Anti-Gay Marriage Amendment,” Associated
Press, available online at http://news.yahoo.com/perry-signs-pledge-anti-gay-marriage-amend
ment-161046437.html
2. Amy Gardner and Matt Delong, “Newt Gingrich’s Assault on ‘Activist Judges’ Draws
Criticism, Even from Right,” Washington Post, December 18, 2011, available online at http://
www.washingtonpost.com/politics/newt-gingrichs-assault-on-activist-judges-draws-criticism-
even-from-right/2011/12/17/gIQAoYa800_story.html
3. Michael D. Shear, “Obama Nominates Berkeley Professor Goodwin Liu to Federal
Appeals Court,” Washington Post, February 25, 2010, A 21.
4. Associated Press, “Thune: Federal Judge Nominees Are ‘Good Picks,’” Rapid City
Journal, September 9, 2009, available at www.rapidcityjournal.com/articles/2009/09/09/
news/doc4aa7f74c398bf352231062.txt
5. Gary Martin, “State’s Senators Recommended Two for Federal Bench,” Houston
Chronicle, July 20, 2011, B2.
6. Carolina A. Miranda, “Just What Is a ‘Wise Latina,” Anyway?” Time, July 14, 2009,
available at http://www.time.com/time/politics/article/0,8599,1910403,00.html
7. Fox News, “Senate Confirms Sotomayor to U.S. Supreme Court,” August 6, 2009,
available at http://www.foxnews.com/politics/2009/08/06/senate-confirms-sonia-soto
mayor-supreme-court/
8. Dana Milbank, “In Kagan, Obama Picks a Nominee, Not a Fight,” Washington Post,
May 11, 2010, A2.
9. Ibid. Also, for an excellent discussion of President Obama’s quest for diversity on the
federal bench, see Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, “Obama’s Judiciary
at Midterm: The Confirmation Drama, Judicature 94(2011): 262–304.
10. Jeffrey Toobin, “Are Obama Judges Really Liberals?” The New Yorker, September 21,
2009, available at http://www.newyorker.com/reporting/2009/09/21/090921fa_fact_
toobin?currentPage=all
11. Goldman et al., “Obama’s Judiciary at Midterm,” 272.
12. Jon R. Bond, “The Politics of Court Structure: The Addition of New Federal Judges,”
Law and Policy Quarterly 2 (1980): 182, 183, and 187.
13. Jerry Markon and Shailagh Murry, “Federal Judicial Vacancies Reaching Crisis Point,”
Washington Post, February 8, 2011, available online at http://www.washingtonpost.com/
national/vacancies-on-federal-bench-hit-crisis-point/2011/02/07/ABzpkZF_story.html
14. Goldman et al., 280.
15. Ibid.
16. Ibid, 287.
17. Paul Kane, “Senate Republicans Block Judicial Nominee Goodwin Liu,” Washington
Post, May 19, 2011, available online at http://www.washingtonpost.com/politics/judicial-
nominee-goodwin-liu-faces-filibuster-showdown/2011/05/18/AF6ak76G_story.html
18. Ibid, 293.
19. It should be emphasized that when one is discussing a president’s potential to make an
ideological impact on the judiciary, it is not sufficient to count only the number of appoint-
ments he can make. One also has to factor in which cohorts of judges are retiring from theRobert A. Carp, Kenneth L. Manning, and Ronald Stidham 435
bench. Thus if Obama appoints a mainstream Democrat to replace retiring a Clinton judge
who is also a mainstream Democrat, there is no ideological gain for the administration.
However, if Obama appoints a moderate Democrat to replace a retiring conservative Reagan
jurist, there is a two-fold gain. And at the present time, the oldest cohorts of any size still on
the federal bench are those appointed by Ronald Reagan and by George H.W. Bush. This
enhances Obama’s potential to nudge the judiciary to the left, because he is more likely to
replace a conservative Republican with a Democrat who is likely to be more liberal. To be
more precise, since Obama took office, some 75 active and senior judges appointed by
Republicans have departed the bench due to death or retirement, while only 60 jurists selected
by Democrats have done so.
20. These rulings were handed down in three key issue areas: civil liberties and rights;
criminal justice; and labor and economic regulation. Though we coded only district court rul-
ings, prior research suggests that the behavior of jurists at this level is comparable to that of
judges appointed by the same presidents to the courts of appeals. See Ronald Stidham, Robert
A. Carp, and Donald R. Songer, “The Voting Behavior of President Clinton’s Judicial
Appointees,” Judicature 80 (1996): 16–20; and Robert A. Carp, Donald Songer, C.K. Rowland,
and Lisa Richey-Tracy, “The Voting Behavior of Judges Appointed by President Bush,”
Judicature 76 (1993): 298–302.
21. The reader will note that we have made few references to President Gerald Ford in our
generalizations about the voting behavior of recent Republican presidential cohorts. The rea-
son is that President Ford was something of an outlier and an exception to the rule that the
judges appointed by GOP chief executives are generally more conservative than those selected
by Democratic presidents. Ford’s overall liberalism score of 44 percent makes him the most
liberal of recent Republican presidents, although still more conservative than recent
Democratic chief executives. There are at least two reasons for this. First, Ford was much less
of a political ideologue than his predecessor in the White House, Richard Nixon, or his
Republican successors, Reagan, Bush Sr., and George W. Bush. Also, because Ford’s circuitous
route to the presidency did not enhance his political effectiveness with the Senate, he would
not have the clout to force highly conservative Republican nominees through a liberal,
Democratic Senate, even if he had wished to.
22. In previous studies of judicial decision-making, we have broken down the liberalism
numbers for each presidential cohort into our three subcategories of civil rights and civil liber-
ties, labor and economic regulation, and criminal justice. However, because our total “n” for
the Obama cohort is still relatively small, it would be methodologically unsound to publish
results produced by such diminutive samples. Indeed we acknowledge that even our total “n”
for the Obama cohort—91 decisions—is quite modest. We consequently we put forth our
observations and conclusions here in a very tentative fashion and caution that our results
could change with the addition of more cases to our sample.
23. For a superb discussion of President Obama’s appointments of women and minorities
to the federal bench, see Goldman et. al., “Obama’s Judiciary at Midterm,” 262–304.
24. See Robert A. Carp, Kenneth L. Manning, and Ronald Stidham, “President Clinton’s
District Judges: ‘Extreme Liberals’ or Just Plain Moderates,” Judicature 84 (2001):284–288; and
Robert A. Carp et al., Judicial Process in America, 8th ed., chap. 5 (Washington, DC: CQ Press, 2011).You can also read
