Over the course of several decades, the right has nurtured what essentially amounts to a shadow judiciary, composed of conservative legal scholars who disagree, juridically and ideologically, with the post-New Deal consensus. Republican presidents draw upon this class of activists to fill judicial vacancies, creating a modern antipode to liberal judicial activists of previous decades. As that movement has matured, and in part because that movement has matured, politics has shrunk the ideological sphere from which Democratic presidents have been able to cull liberal jurists. Outspoken progressives, on the periphery of the sphere, have been marginalized. The liberal legal establishment is so scrutinized and subject to so many litmus tests that it has self-selected for timid or self-censoring thinkers, at least in part because it was assumed "liberal activists" would be blocked, and thus never nominated. That limiting force is gone now. And the hope is its absence draws a new generation of legal minds out of the shadows and onto the bench sooner than later.
A couple of months after President Obama took office, the White House began a straightforward, constitutionally mandated process: selecting judicial nominees. The president was mindful of the bitter fights of the Bush and Clinton eras, and Obama, weary of ugly partisanship, had a plan: he'd nominate a bunch of moderates.
Indeed, in March 2009, the president nominated David Hamilton -- a centrist jurist with a reputation for restraint and a middle-of-the-road ideology -- for the 7th Circuit Court of Appeals. It was intended to send a signal to Republicans: the process of filling vacancies on the federal bench doesn't have to be contentious. A White House aide said at the time, "We would like to put the history of the confirmation wars behind us."
A month later, far-right senators immediately said Hamilton was a radical leftist who needed to be filibustered.
I mention this story because it's an under-appreciated aspect of the process that culminated in yesterday's "nuclear option." If Obama had gone out of his way to pick an ideological fight with Senate Republicans -- nominating the most left-wing, hyper-liberal jurists he could find -- the GOP's unprecedented obstructionism would at least be marginally more defensible. But the president has done the polar opposite, trying to avoid these fights and circumvent the need for filibusters by choosing center-left, mainstream nominees -- who ended up getting blocked anyway.
For his trouble, radicalized congressional Republicans decided ideology, qualifications, and temperament no longer mattered -- they'd block Obama's nominees because they're Obama's nominees.
But as of yesterday afternoon, the landscape has changed. The White House's well-intentioned plan to name centrists to the courts in the hopes of placating Republicans and ending the "confirmation wars" failed -- not because of Obama, but because Republicans decided to turn the obstructionism to 11 anyway. But now that the GOP minority can't engage in these filibusters anymore, the White House has a unique and perhaps historic opportunity. Brian Beutler explained yesterday:
Quite right. Now that judicial filibusters are a thing of the past, Obama could shift his focus, look beyond nominations of aggressively moderate, center-left jurists, and start sending actual liberals to the Senate for confirmation. Or put another way, Obama could select judicial nominees who are as progressive as Bush's nominees were conservative.
There are currently 93 vacancies on the federal bench. If the Senate confirmed 93 progressive judges, it would be a rare opportunity to move the entire judiciary to the left for the first time in a generation.
Yes, the Supreme Court would still be conservative, and could overturn lower-court rulings, but let's not forget that the high court only hears about 10% of the cases that reach its doors.
It's a rare opportunity. Here's hoping the White House seizes it.