President Obama’s first-term Supreme Court appointments make it seem unlikely to conservatives that the president will nominate judges over the next four years known for their judicial restraint. In fact, for progressives, judicial restraint takes on an entirely different description.
At least, that’s the impression given by Ian Millhiser at a recent Center for American Progress event, in which he said that the “frivolous” lawsuit against the Affordable Care Act, also known as Obamacare, convinced him against judicial activism. “And one thing I will say that that taught me is that judicial restraint is really important and that I think that we have an obligation as progressives to come up for a theory of where the line is that judges do not cross,” said Millhiser. “I no longer believe that my legislative agenda should be–should come from the Supreme Court, and, in that regard, I think that President Obama’s judges have had an eye toward judicial restraint, and have had less of an eye to the sort of Warren Court jurisprudence, including his two nominees to the Supreme Court, and I think he deserves credit for that.” Millhiser is a senior policy analyst for Constitutional Policy at CAP.
Doug Kendall, president of the Constitutional Accountability Center, followed up on Millhiser’s comments, saying that “[…]the central challenge we have as progressives is responding to a really radical constitutional visions being advanced by Justices in the Supreme Court” and “by judges in the lower court.” Namely, Kendall objects to the D.C. Circuit’s treatment of Environmental Protection Agency (EPA) regulations to combat climate change. “That’s why the courts are so important to President Obama, because we pass all this great legislation, we put in Lisa Jackson as an incredible EPA administrator, we follow the law–and then courts make it not happen,” he said. “The most important environmental decisionmaker in the United States is not the EPA, it’s not the Congress, it’s the eight judges, now, who sit on the D.C. Circuit–and there’s eight judges because there are three vacancies, not one of which was filled during the first term.”
Adam Freedman, writing for City Journal, notes that “Obama will begin his second term with about 90 vacancies to fill among 874 federal judgeships; he has already appointed 126 judges.”
“By the time his second term is over, Obama will probably have appointed over 300 judges and may approach the 379 appointed by Bill Clinton,” continues Freedman. “At a minimum, the president will likely replace the aging liberals Ginsburg and Breyer with younger models. But it’s also possible that Kennedy or Scalia, or both, could leave the bench during the next four years, presenting Obama with an opportunity to forge a liberal majority on the Court.” This, for the speakers at the CAP conference, would be a change for Obama to forge his legacy.
“There is almost nothing more important to the achievement of things like President Obama’s efforts to combat climate change,” argued Kendall at the CAP event. “The only thing that’s moving forward on that front are regulations passed by EPA under a 5-4 ruling by the Supreme Court–that we barely won–that we allowed the EPA to use the authority of the Clean Air Act to combat climate change. They’re doing it, they’re doing it aggressively; it could all go by the wayside because of the D.C. Circuit. And it could all could go by the wayside because we have eight judges, not 11 judges, on that court. “
He continued, “He [Obama] doesn’t have to appoint raging liberals in order to uphold statutes that protect the public and that protect our environment. He needs judges who are fair, and that’s kind of the central challenge.”
Whether Obama’s nominations will prove “fair” or not concerns conservatives. In his article, Freedman voices his concerns over the impact that appointing a liberal bloc might have on judicial decisions. An invigorated and expanded liberal bloc on the Court could undo many important precedents,” he writes. “The Court’s decisions, for example, protecting speech rights of corporations (Citizens United v. FEC), school choice (Zelman v. Simmons-Harris), and the right to bear arms (District of Columbia v. Heller and McDonald v. Chicago) were all decided on 5–4 votes. Challenges to Obamacare and other recent regulations are likely to present the Court with major decisions on religious liberty and federalism over the next few years.”