THE BLOG
07/08/2013 09:49 am ET Updated Sep 07, 2013

Obama Legacy Project Should Focus on Judicial Appointments

Journalist Jonathan Alter said recently that the 2012 election was "the most consequential" of his lifetime.  In his new book, The Center Holds: Obama and His Enemies, Alter describes this more in terms of the non-election of Mitt Romney than the reelection of Barack Obama:

Even if Democrats blocked some of Romney's bills, his election would have vindicated the Bush years and everyone associated with booting Obama, from Karl Rove to the Tea Party. It would have given comfort (and jobs) to those who considered climate change a hoax and the war in Iraq a noble cause. With Obama and his other achievements reversed, Obama's residency might well have been seen by many historians as a fluke, an aberration occasioned in 2008 by a financial crisis and a weak opponent, John McCain.

Nearly all of Obama's signature legislative accomplishments -- Recovery Act, Affordable Care Act, Troubled Asset Relief Program, Dodd-Frank Wall Street Reform and Consumer Protection Act, GM and Chrysler reorganizations, repeal of "don't ask, don't tell" -- were during his first two years in office.

Obama's focused transition to the White House, a chief of staff (Rahm Emmanuel) with strong ties to the House leadership, and the requisite arm-twisting of holdouts on key votes certainly contributed to legislative success, but those were tiny slivers on the pie chart. "Like it or not," the New Yorker's Ryan Lizza wrote in March, "for many years, Washington has been most productive when one party controlled both Congress and the White House."

Lyndon Johnson's celebrated legislative achievements were in reality only a function of the congressional election results -- not his powers of persuasion. In 1965 and 1966, after the enormous Democratic gains of the 1964 election, Johnson was a towering figure who passed sweeping legislation. In 1967 and 1968, after he lost forty-eight Democrats in the House, he was a midget.

But Johnson's significant legislative successes -- Civil Rights Act of 1964, Voting Rights Act of 1965, Medicare, Medicaid -- endured in the years after becoming law because Democrats had large majorities in the House and Senate for the next decade and because Richard Nixon was much more a reformer than his popular legacy would suggest.

Even after their respective years of big congressional majorities, Johnson and Obama both had legislative successes at the margins. Johnson's Civil Rights Act of 1968 (Fair Housing Act) added enforcement teeth to anti-discriminatory housing laws, and Obama's American Taxpayer Relief Act of 2012 preserved the expiration of the 2001 and 2003 Bush tax cuts on the highest income-earners.

By the end of 2016 -- regardless of what happens in the 2014 midterm elections -- Obama's legislative brag list will be only marginally different than it is today. Congress may or may not pass comprehensive immigration reform, but the prospects for tax code reform, entitlement reform, new environmental legislation, new energy legislation, an infrastructure bank, a jobs plan, or dozens of other priorities fall somewhere between not likely and fatally doomed. There are areas like Obamacare and financial regulatory reform where congressional tweaks could make the laws more effective, but those likely won't happen either.

The House will almost certainly stay in GOP control until after the 2020 redistricting at the earliest, and Senate Democratic leaders have shown little spine in reforming the rules that allow the minority party to use filibusters and holds to unilaterally shut down legislation and may find themselves in the minority after 2014.

Even if the Obama White House had the machinery to push an aggressive new legislative agenda, doing so would be both unnecessary and counterproductive. There is only so much bandwidth in the administrative branch for absorbing new or different programs, and the Obama administration already has as much as it can handle. The implementation of Obamacare and financial regulatory reform are both enormous undertakings that will take years to absorb, and the implementation of Obamacare is somewhere between off schedule and a big mess.

Presidents, though, do not succeed by legislation alone. A congressional focus of the kind the Obama White House undertook in its first two years would distract from the usual second-term objectives: foreign policy, scandal management and judicial nominations.

Only six months into a second term, it's far too early to tell the impact of foreign policy and scandals (actual scandals -- not non-scandals like IRS, Behghazi and Edward Snowden), but President Obama's is already far behind the pace in leaving his mark on the judiciary. The White House has named only 31 nominees to fill 84 District Court and Court of Appeals vacancies. Of the 23 seats that have been vacant for 18 months or longer, the president has named only nine nominees -- mostly in red states where issues important to President Obama like voting rights, Medicaid expansion, etc., are most at risk -- effectively writing off many of those judgeships.

Democrats have advanced several arguments for why nominees are getting bottled up in the Senate -- most of which are variations of the Senate is laughably dysfunctional -- but that doesn't explain the Obama administration's failure to identify nominees for even half the current vacancies.  If leaving more than half the judgeships empty is a strategic move by the White House, I can neither imagine an explanation nor have seen an explanation advanced for the upside of such an approach.

There are many things that Obama cannot control about his legacy -- whether he gets to appoint another Supreme Court justice, who the next president will be, etc. -- but he should use every tool available to leave the broad mark on the judiciary that he is constitutionally required to make.