October 27, 2017

Refocusing the Courts on the Rule of Law


  • President Obama made the federal judiciary liberal, appointing almost 40 percent of active judges by the end of his second term.
  • He appointed 55 judges to the federal appeals courts and created liberal majorities on nine of the 13 circuits across the country.
  • Senate Republicans are working with the administration to appoint judges who rule based on the law, not on their policy preferences.

President Obama reshaped the federal judiciary by appointing judges who met his own “empathy standard” – a subjective, outcome-based philosophy that substitutes feelings for the rule of law. Republicans have an opportunity to restore the courts by appointing qualified judges ready to uphold the law.

Circuit Court

President obama remade the judiciary in his liberal image

After Supreme Court Justice David Souter announced his retirement in 2009, President Obama said he would look for a replacement with “empathy” – creating what has been called the “empathy standard.” To him, this meant “understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.” President Obama wanted judges to “understand that justice isn’t about some abstract legal theory or footnote in a case book.” As a senator, he had called for examining the “basis” of a prospective judge’s “deepest values, ... core concerns, ... broader perspectives on how the world works,” and “the depth and breadth of” the nominee’s “empathy.” Taken together, this empathy standard would require a judge to rule not as the law demands but in line with liberal policy preferences.

President Obama then filled the judiciary with judges who met his empathy standard. According to ABA Journal, during his two terms, President Obama appointed about 40 percent of the federal judiciary. Of that group, President Obama appointed 55 judges to the federal appeals courts, including four appointees to the key District of Columbia Circuit. Because the Supreme Court hears a limited number of cases each year, the circuit courts most often act as the final arbiters on the law. Circuit court appointments are some of the most important jobs a president can fill.

Reuters noted in 2016 that President Obama’s “appointments of dozens of judges to the country’s influential federal appeals courts have tilted the judiciary in a liberal direction that will influence rulings for years to come.” When President Obama took office, Reuters added, only one of the 13 circuits had a majority of its judges appointed by Democrats. When he left office, nine of the 13 had liberal majorities.

republicans can refocus the courts on the rule of law

In a 2016 speech looking back on Justice Antonin Scalia’s career, Justice Neil Gorsuch explained why the empathy standard is exactly the wrong approach to judging. A good judge, said Justice Gorsuch, should “strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be – not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Justice Gorsuch detailed two key reasons for limiting a judge’s role simply to applying the law as written. First, the Constitution’s text and design demand it. Second, separating legislating from judging “is critical to preserving other constitutional values like due process, equal protection, and the guarantee of a republican form of government.” When “life-appointed judges are free to legislate alongside elected representatives,” he said, the people would be left with such a “little voice” that the “very idea of self-government would seem to wither to the point of pointlessness.”

There are currently 21 circuit court and 120 district court vacancies in the federal judiciary, with 11 circuit court and 36 district court nominations pending. Additionally, there are three circuit court nominations pending for future vacancies. Almost half of the total judicial vacancies are classified as judicial emergencies, meaning they are a particularly high priority to fill. President Trump has chosen qualified people, who have bipartisan support, to fill these jobs. Democrats have obstructed and delayed Republican efforts to confirm these judges through the use of needless cloture votes and other stalling tactics. 

Despite these partisan roadblocks, Senate Republicans are moving ahead on confirming four highly qualified, mainstream judges who understand that the role of a judge is to apply the law faithfully and impartially. Next week, the Senate will confirm Amy Coney Barrett, currently a professor at the University of Notre Dame Law School, to the Seventh Circuit Court of Appeals. Professor Barrett clerked for Judge Laurence Silberman on the D.C. Circuit and Justice Scalia on the Supreme Court. She has sat on the Advisory Committee on Federal Rules of Appellate Procedure for six years, after being appointed by Chief Justice John Roberts. In a letter to the Judiciary Committee, a bipartisan group of law professors expressed strong support for her nomination, saying that professor Barrett “enjoys wide respect for her careful work, fair-minded disposition, and personal integrity.”

The Senate next week will also confirm Justice Joan Larsen, who currently sits on the Michigan Supreme Court, to the Sixth Circuit Court of Appeals. Before her appointment to the highest court of Michigan, Justice Larsen was a law professor at the University of Michigan. Justice Larsen clerked for Judge David Sentelle on the D.C. Circuit and Justice Scalia on the Supreme Court and also served as a deputy assistant attorney general in the U.S. Department of Justice Office of Legal Counsel. Writing to the Judiciary Committee, former senior Justice Department officials said that during “more than 20 years of practicing and teaching law in and out of government, Joan Larsen has earned a well-deserved reputation for acumen, integrity, and judgment, as well as deep respect for the rule of law.” Her Michigan Law School colleagues from across the political spectrum wrote that her “commitment to the rule of law and her capacity for top-flight legal analysis are both of the first order, and her personal integrity and decency are exceptional.”

Justice Allison Eid, who has been a justice on the Colorado Supreme Court since 2006, will join the Tenth Circuit next week. Before her elevation to the bench, Justice Eid served as the solicitor general for the state of Colorado and was a member of the University of Colorado School of Law faculty. She clerked for Judge Jerry Smith on the Fifth Circuit Court of Appeals and for Justice Clarence Thomas on the Supreme Court. Justice Eid’s former law clerks described her as “fiercely independent, ultimately deciding cases as she believes the law requires.” During their clerkships, they observed her treating “each case individually without any preconceived notion of desired outcome.”

Finally, the Senate will confirm next week Stephanos Bibas, a member of the faculty of the University of Pennsylvania Law School, to the Third Circuit Court of Appeals. Mr. Bibas clerked for Judge Patrick Higginbotham on the Fifth Circuit Court of Appeals and Justice Anthony Kennedy on the Supreme Court. He also has experience as an assistant U.S. attorney for the Southern District of New York and as an associate at the law firm Covington & Burling. A bipartisan group of more than 100 law professors wrote to the Judiciary Committee to say that professor Bibas’s “fair-mindedness, conscientiousness, and personal integrity are beyond question” and that “his judicial temperament will reflect these qualities and that he will faithfully discharge his duty to apply the law fairly and even-handedly in all matters before him.”

Issue Tag: Judiciary