THE BLOG
06/05/2013 04:41 pm ET Updated Aug 05, 2013

Where Is Axelrod's Mustache? Obama on the Court -- Now and Later?

The president has thrown down the executive gauntlet to the Senate for preventing too many of his judicial nominees from getting an up or down vote. (Insert yawn here). As rhetorically well-delivered as the president's remarks were introducing three candidates for three existing vacancies on the U.S. Court of Appeals of the DC Circuit, he knows -- and we know -- there is nothing new about Senate efforts to stall as long as possible as many as possible of a president's nominations for the federal bench. The news was not President Obama's announced frustration, but how patient he was in manifesting it.

I remember in the first term at a State Department lunch trying to explain to David Axelrod how noble I thought it was for President Obama to not make the judiciary a political football. David gave me that incredulous look that he sometimes displays on Meet the Press when someone in discussion seemingly puts political integrity over politics -- though these days, David's seeming snarl may merely be his suffering with the after-effects of the sudden disappearance of his mustache. There is no necessary correlation between hairlessness and sage political insight, but David can be forgiven if he drew the wrong conclusion from the un-follicled James Carville who also supplements his income as political consultant with side-gigs as a pundit.

Whether or not the Axelrod hair clip returns, it should not be surprising that the president has been convinced in the second term to stay above the political fray over judicial nominations. This is not an easy position for presidents to take since inevitably it means showing respect for decision makers who disagree with executive actions and positions. Nevertheless, it was admirable for President Obama out of his own scholarly understanding of constitutional history to keep it up as long as he did.

Of course, there is absolutely nothing wrong with judicial appointments being influenced by presidential philosophy and party. Pre-appointment politics is often a qualifier for office, even as it must (or should) disqualify when it occurs after appointment. Once judges are appointed we expect (and deserve) the non-partisan application of the law.

This can be a hard concept for the general citizen to assimilate and there is a natural tendency to forget that the Constitution forges non-partisanship out of a decidedly partisan confirmation process. It probably doesn't help matters that the news media is regularly aided and abetted by 5-4 type analysis by law professors (including myself on occasion) who have taken the easy shorthand and embedded the mistaken notion of a judge as continuing partisan. Professor (now President) Obama was no doubt a better teacher than myself and was more careful to emphasize how the Constitution exchanges a life time post for the giving up of partisan perspective.

Yet, at the moment of nomination and appointment, the Constitution expects a president to appoint judges that see the law as he does, just as much as it expects a Senate in the control of the other party to check a president's partisan leanings with its own. What is a tad different is that in modern times, even Senate minorities, like the Republicans are presently, can push back and stall presidential nominations for the bench, and sometimes, the executive branch as well. This leads presidents, as it has now led President Obama, to cry foul with the same arguments his immediate predecessors did when the shoe was on the other goose to deliberately mix metaphors to emphasize the staleness, but not unimportance, of the debate.

The Senate vehicle for making judicial nominations dicier in the modern time is the filibuster which is anything but modern. At its most basic level, a filibuster is merely a Senate rule requiring a three-fifths vote to end debate. The filibuster has been around a long time, but it became more controversial when Senate minorities deployed it against Bush judicial nominees, and now vice versa.

As noteworthy as the first term Obama effort was to ratchet down the heat over judicial nominations, the partisan nomination of men and women to the bench is also good constitutional history. Our second president, John Adams, gets much of the credit for placing large numbers of his fellow Federalists on the bench as he was leaving office. Indeed, the Court's signature decision affirming the principle of judicial review which had been largely implicit until then emerged from that factual setting.

Adams was blunt in his packing of the Court, well before a somewhat similar effort was attempted by Franklin Roosevelt. FDR was having continuous beefs with senior justices who insisted on ignoring Depression-generated regulatory needs, and invoked ill-fitting nostrums that equally ignored the ten million Americans standing in breadlines. FDR was an enormously popular president who won re-election by a landslide in 1936, but even an extremely beloved president in economic distress, he was -- thankfully -- not allowed to set aside the rules of judicial selection which, while indifferent before established, once specified, need to be observed by all.

For the Republicans to claim that they are merely preventing Obama court-packing is nonsensical. Court-packing is what Adams succeeded at in theory, and what FDR attempted: it involves structural manipulation of potentially lasting effect; that is, increasing seats until his appointees for these newly minted positions overwhelmed his existing judicial naysayers about his economic regulation. By contrast, President Obama is merely attempting to fill three existing vacancies. Had he nominated the very same people and said nothing like the first term, there would have been no news.

The partisans advising the president to make news and put up a tougher fight for the lower courts have now prevailed in strategy, and it now remains to be seen what, if anything comes from it. It is unlikely to be seen as part of the signature Obama effort at common ground. Had that been the president's focus, one of the three joining him on the Rose Garden steps could have been a very well qualified Republican or independent. Now, that would have been news since such bipartisanship in judicial choice has so seldom been initiated by presidents.

In some respects, one or both of President Obama's Supreme Court nominees might be characterized in this way. Obama enjoyed the great good fortune of having two appointments to the Supreme Court in the first term (it should be remembered that presidents are not guaranteed this; Jimmy Carter, for example, had none). Both of Obama's appointments to the high bench have been proven to be excellent in every regard. Agree or disagree with the substantive holdings of Justices Sotomayor or Kagan, no one seriously faults their preparation; their excellence of mind and probing of every side of a case which is on display in virtually every argument. These appointments did not happen by accident and they reflect the discernment of this President's own fine capacity for constitutional questions. Indeed, the President is so superb in this respect that the more interesting development will be whether or not he finds a way to create an opening on the bench for himself at the conclusion of his presidency.

This is not unprecedented and anticipating as Democrats might, a President H. Clinton, not at all unthinkable. As for precedent, there is William Howard Taft who much preferred the solitude and orderliness of judicial office to the more ersatz executive. By friendship and the appointment of people of modest health and stamina, Taft managed to put himself front and center for the High Court. When the sickly Edward White appointed by Taft left the earth and the bench after the end of the Taft presidency, the former president was there presenting himself as the best option. Frankly, he is widely regarded as just that. Certainly, his practical experience as President led to several of the most venerated opinions delimiting the presidential office and guiding matters since.

But whether or not Obama seeks to make his home post-presidency permanently in Washington rather than returning to Illinois or Hawaii or wherever Donald Trump thinks he came from, there's no question about that his advisers and many of his supporters would like to be on the federal bench, and they are undoubtedly pleased by the president's higher profile. Any honest assessment of constitutional practice cannot begrudge him that.

What was missed perhaps was the opportunity to meld greater respect for the judicial office and the pursuit of common ground with the altogether expected course for a president to prefer his own people for appointment. Perhaps the President will take that opportunity with later nominations. By then David Axelrod's mustache will have returned to more clearly manifest his practical politics disagreement with a President, who like myself, is occasionally given to a Lincolnesque, or at least Frank Capra-esque, endings to filibusters.

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