The Coming Obama Judiciary
by Jonathan Singer, Wed Mar 11, 2009 at 07:06:06 AM EDT
During the tenures George W. Bush, George H.W. Bush and Ronald Reagan, the White House went to great lengths to stock the federal judiciary with strong conservatives. To this end, the Bush, Bush and Reagan administrations not only sought ideologues, but relatively young ones, at that, who could influence policy for decades to come and serve as the training ground for potential Supreme Court vacancies in the future (see, e.g., Samuel Alito, nominated by the senior Bush to the Third Circuit Court of Appeals before he turned 40, and by the younger Bush to the Supreme Court at age 56).
With the Obama administration taking over the reins of shaping the federal judiciary, will it endeavor to follow recent precedent in the hopes of restoring some balance to the bench? At least according to the initial tea leaves being read by The New York Times' Neil A. Lewis, perhaps not.
To fill a seat [on the Fourth Circuit] that traditionally goes to someone from Maryland, officials said the White House was considering nominating Andre Davis, a District Court judge based in Baltimore.
There are several candidates for the Virginia seat, including Elizabeth Magill, a law professor at the University of Virginia and daughter of a former federal appeals court judge.
For the United States Court of Appeals for the Second Circuit, based in New York, officials said the White House had settled on elevating Judge Gerard E. Lynch, a Columbia law professor, from the District Court.
At least so far, the candidates being considered by the Obama White House for early nomination do not appear to have especially ideological profiles.
I don't know anything about the three names floated above, so I can only take at face value the assertion that they "do not appear to have especially ideological profiles." But from what I am able to gather about them, they do, with the exception of Elizabeth Magill, differ from many of the appointees of the recent Republican administrations in a key area: Their age.
Judging by her CV, which states she graduated from Yale in 1988, Professor Magill appears to be somewhere in the neighborhood of 42 years of age, putting her in the range of the age of many of the Republican-appointees. Judge Gerard Lynch, however, is 57 or 58 years old, and judge Andre Davis is 60 years old.
This all isn't to say that the Obama administration would be well served by taking an ageist approach that leads to the selection of only those below the age of 45 or 50 to the federal circuit. The folly of such a strategy is so plain that it need not be expounded on. What's more, the administration shouldn't necessarily only pick ideologues for the bench, either. That said, considering that the composition of the federal judiciary is already more than 60 percent Republican nominees, many of whom are both young and strong conservatives, a strategy of excessive caution in nominations -- particularly with the largest Democratic majority the Senate has seen in nearly 30 years, and the most progressive Senate in generations -- does not appear warranted, either.