One of the biggest losses in the Goodwin Liu nomination fight was that he was a rare young progressive nominated to an appellate court. Conservatives understand the importance of getting young conservatives on the federal bench, to ensure domination of the judicial branch for years to come. This is a dispiriting statistic:
Since 1981, Epstein says, Republicans have appointed 41 federal appellate judges under age 45 to the Democrats’ 10. Bush placed 13 judges in this group. Obama, so far, has zero.
In fact, Jonathan Bernstein points out that only one of the 19 judges appointed by Obama and confirmed to the federal bench was under 50 at the time. So these judges will retire sooner and have to be replaced sooner, and it’s a wildcard which President of which party will get to replace them. And the more stable, younger judges who stick around longer tilt the balance of power in the federal judiciary toward conservative activists.
The other consequence is that appellate court judges are typically the stepping stone to a Supreme Court nomination. And without a bench of young jurists, there are disadvantages for Democratic Presidents in finding qualified candidates.
There are two problems that have led to this: GOP obstruction, yes, but also indifference from the Administration on their judicial legacy. They have not made judicial appointments nearly fast enough. And when they’ve made them, they have not worked to get them confirmed. The Senate literally has nothing else to do but confirm judges, but after a decent start this year, they have let this go by the wayside. The President has the lowest judicial confirmation rate of any President of the last 40 years. As Adam Serwer writes today, the future of the courts really are at stake here:
Most of the time, we’re focused on elections as determinative of important political outcomes. But political majorities are fleeting, and judges are lifetime appointments. The American system has a built-in status quo bias that makes big changes difficult to achieve. However, if Republican obstruction and administration indifference continue, the conservative domination of the federal bench could dramatically alter the country for years to come.
It’s one of these under-the-radar problems that most people aren’t talking about. But it’s very real.