Why Obama’s Legacy Could Be Decided in the Courts

The law, lawyers, and the court.
May 29 2013 7:12 PM

A Legacy Litigated

President Obama better get his judges appointed. Because his legacy will be decided in the courts.

President Obama in the State Dining Room.
President Obama’s signature achievements will have to survive Republican-dominated federal courts.

Photo by Mark Wilson/Getty Images

President Obama is finally getting serious about the U.S. Court of Appeals for the District of Columbia Circuit. The federal appeals court is second only to the Supreme Court in importance, because it referees fights about the power of federal agencies and the rulings they make (and also because it’s a traditional feeder to the high court). After years of filibuster woe over Obama’s initial failed nomination to the court, the Senate confirmed Sri Srinivasan to the D.C. Circuit last week by a vote of 97–0. This marks the first appointment on the court since 2006 and the one and only cakewalk Obama can expect. The president reportedly will soon nominate three candidates simultaneously to fill the D.C. Circuit’s remaining vacancies.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

This is a big dare to Senate Republicans, who have been calling the simple filling of the open spots “court packing” and parried with legislation to reduce the number of seats on the D.C. Circuit from 11 to eight. That would conveniently leave Obama with no more seats to fill and the court with four Republican appointees; four Democratic ones (including Srinivasan); and six senior judges (five of them chosen by Republicans) who pick up the rest of the workload.

Nominating three judges at once signals that Obama is finally heeding the call of the Democratic lawyers and law professors who have bemoaned his relative lack of interest in the lower courts since around Day No. 2 of his first term. The president taught constitutional law, goes the refrain. He knows how important judges are. Why isn’t he pushing his people through? Obama has been molasses slow about naming his nominees: There are currently 16 open spots on the federal appeals courts, and with the three D.C. Circuit choices that are on their way, the number of Obama nominees is still only nine. On the district courts, the president has named only 16 candidates for 64 open spots.

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At the same time, liberal bafflement over Obama’s relative indifference toward the courts does not give Senate Republicans enough credit for their determination to throw up roadblocks. The filibuster used to be reserved for judicial nominees with a whiff of controversy about them, and during the presidency of George W. Bush, a bipartisan group of senators agreed only to filibuster judicial nominees under “extraordinary circumstances.” That deal is long gone: Republicans today are filibustering just about everyone except Srinivasan. As of last month, Obama’s nominees for the federal appeals courts have waited an average of 148 days for a confirmation vote following approval by the Senate Judiciary Committee, a wait more than four times as long as the average for President George W. Bush’s nominees. (The average wait for district court nominees has risen to 102 days from 35 for Bush.)

It’s worthwhile for Obama to finally push back because of the courts’ power over his legacy. If Obama doesn’t get his judges through and the bench becomes increasingly dominated by conservative justices for years to come, his failure to fill these vacancies could be the poison pill of his presidency. Law isn’t simply made by the Supreme Court. It’s also hammered out in the lower courts.

What exactly is at stake for Obama in the fight over judges? Here are five current court challenges that could derail key parts of his agenda. If you have another case to add to the list, send it to me at emilybazelon@gmail.com or post it in the comments below. Email may be quoted in Slate unless you stipulate otherwise. If you want to be quoted anonymously, please let me know.

1) Obamacare

Twenty-six states are not establishing the state-run health care exchanges that were supposed to be Obamacare’s primary engine for increasing access to health insurance. (Sigh.) In these naysaying states, the federal government is supposed to step in and create the exchanges itself. But there’s a catch. As Simon Lazarus explains in the New Republic, a lawsuit filed this month in federal court in Washington, D.C., argues that only state-run exchanges can offer tax credits and subsidies. Meanwhile, the Obama administration thinks that 80 percent of the people who buy insurance through the exchanges will need those subsidies.

Here’s the thinking behind the lawsuit, funded in part by the conservative Competitive Enterprise Institute. The problem, apparently, is a drafting error, but Congress doesn’t want to fix any of those. The Obama administration says the Internal Revenue Service has the authority to extend the tax-credit provisions in the Affordable Care Act to people who use federally run exchanges. But what if the judges who hear the case disagree? Without the tax breaks and subsidies, Lazarus argues, “the individual mandate, constitutional though the Court has declared it, simply won’t work.”

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