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Obama Administration May Bring Ideological Shift to Federal Courts

December 31, 2008 at 6:20 PM EST
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President-elect Barack Obama is poised to preside over significant shifts in the federal courts from lower court judicial appointments to Supreme Court shifts. Analysts examine Obama's constitutional views and how he may handle changes in the judiciary.
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JUDY WOODRUFF: When President-elect Obama takes office on January 20th, he will be responsible for nominating judges to any vacancies on the federal judiciary. That includes openings on the nine-member Supreme Court, but also any of the 179 judgeships on the U.S. Circuit Courts of Appeal or the 678 seats on the federal district courts.

For a look at the potential for President-elect Obama to reshape the nation’s courts, I am joined by Professor Cassell, professor at the S.J. Quinney College of Law at the University of Utah. He previously served as a U.S. district court judge for the district of Utah from 2002 to 2007.

And Pam Karlan, she is a professor of public interest law at Stanford Law School.

Thank you both for being with us.

And, Professor Cassell, to you first. What do you think the potential is for a major shift in philosophy once this president takes office?

PAUL CASSELL, University of Utah: Well, I don’t think there’s much of a potential for a major shift at the district court level. I think that President Obama’s nominees will be solid, capable, technical lawyers at that level.

But as you move up to the Court of Appeals and the Supreme Court level, I think there is the potential for ideology to come to the fore and perhaps see much more of an activist bent in the judges and justices there than you would have seen under a President Bush or a President McCain.

JUDY WOODRUFF: Professor Karlan, what do you think the potential is?

PAM KARLAN, Stanford University Law School: Well, I think there are two things. One is, every president in recent years who’s come into the office has appointed about 300 judges to the federal bench. So that means that a substantial number of the judges who will be sitting for the next decade or so will be people that were appointed before President Obama takes office.

But I do think that different presidents differ in their philosophies about whom to appoint to the bench, and that makes a difference, not only on the courts of appeals, but I think even in the district courts, because how a judge finds the facts or resolves disputed factual questions in front of him may depend a lot on what that judge’s experience has been before he came to the bench or what her worldview is like.

How he or she exercises discretion is going to be different. In a lot of cases, there’s a lot of room for judges to find the facts differently or to apply the law differently.

Obama may appoint 'activist' judges

Pam Karlan
Stanford University Law School
I don't think he's outside the mainstream in any sense. The mainstream is a very wide river, and it ranges from people who are quite liberal to people who are quite conservative, but they're all in that mainstream.

JUDY WOODRUFF: Well, Professor Cassell, you said a minute ago that there's the potential at the district and the circuit court level for there to be more activist judges appointed. What do you mean by that? What makes you believe that?

PAUL CASSELL: Well, if you look at President Obama's record when he was in the Senate, he was really on the far left of his party. He wasn't, for example, in the Gang of 14 that tried to take a centrist approach to judicial nominations. He voted against Chief Justice Roberts and Justice Alito.

And so while he was in the Senate, I think he was very much on the extreme edge of his party.

Hopefully, as he becomes president now and the responsibilities that weigh on the office come to bear, I think maybe he'll take more of a centrist approach. Maybe he would appoint someone like a Justice Breyer, if you want to go back a little bit, a Justice Byron White, who had a bit more of a liberal bent, but was still very much in the mainstream of American jurisprudence.

JUDY WOODRUFF: Professor Karlan, we know that the president-elect taught constitutional law for a while at the University of Chicago. How much is known, do we know right now about his judicial philosophy?

PAM KARLAN: Well, we know things that he said in the campaign debates and on the stump. And he's talked about wanting judges who've had some real-world experience. He wants judges who are empathetic.

He taught courses related to voting rights when he was at the University of Chicago, and he takes, I think, a fairly traditional moderate-to-liberal view that one of the things courts are supposed to do is to protect people who aren't able to protect themselves fully through the political system.

I don't think he's outside the mainstream in any sense. The mainstream is a very wide river, and it ranges from people who are quite liberal to people who are quite conservative, but they're all in that mainstream.

JUDY WOODRUFF: So based on that, what would you expect him to do?

PAM KARLAN: Well, I would expect to see, for example, that he'll appoint a number of judges who have done legal services work for poor people. He's likely to appoint more judges who have been criminal defense lawyers than some of the Republican presidents, who've really only appointed people who have been prosecutors. He may appoint people who've worked for some of the civil rights groups to the bench.

But I think, you know, his own background suggests that he cares tremendously about competence and intelligence and technical skill. And those things can be found in lawyers from a wide range of backgrounds and from a wide range of practice areas.

Legislating from bench a concern

Paul Cassell
University of Utah
Activism is one of those words that's a little complicated, because I think a lot of President Bush's appointments to the bench have been far more activist than the appointments of Democratic presidents.

JUDY WOODRUFF: Professor Cassell, are you saying you see it the same way or differently?

PAUL CASSELL: Well, I think there are going to be some differences. I think Pam is right that he is going to look for capable judges.

But I think, at the same time, they're going to have more of an activist bent than you would have seen under a President McCain or you have seen in the last eight years from President Bush.

I think the big concern here is whether he's going to appoint people who are willing to follow the law or whether he's going to appoint people who are going to start legislating from the bench, becoming the kind of judicial activists that I think the American public really has some concern about.

JUDY WOODRUFF: Professor Karlan, how much of a shift did you see in the courts under President Bush?

PAM KARLAN: Well, I actually -- activism is one of those words that's a little complicated, because I think a lot of President Bush's appointments to the bench have been far more activist than the appointments of Democratic presidents.

I mean, if activism means striking down laws that were enacted by democratically elected, popularly elected legislators, then what do we say about conservatives on the Supreme Court, for example, who strike down the D.C. gun control act or conservative judges who refuse to enforce disability laws that Congress passed against state governments?

So I don't think it's a question of activism versus passivity; I think it's a question of following the law, but also finding the facts. And I think this is something that's critical for people to understand.

A lot of what judges do is to try and resolve disputed factual questions. When a district judge, for example, sits on a discrimination case and the employee says, "I was fired because I was a woman," and the boss says, "You were fired because you were incompetent," the judge has to resolve that factual question. And that's not an issue of activism versus non-activism. That's a judge bringing to bear his common sense.

JUDY WOODRUFF: Professor Cassell, it sounds like the two of you have different ideas or different interpretations of what an activist judge means.

PAUL CASSELL: I think there is going to be a big difference. I think, certainly, when you get to the Supreme Court level, President Obama voted against, for example, Chief Justice Roberts and Justice Alito. They've done an outstanding job in the last several years following the law, not inventing new constitutional rights, not discovering things in the Constitution that are not part of our constitutional history and traditions.

And I think the real concern is whether President Obama will bring back something like the Warren Court years, where it seemed like every few months there would be a new constitutional right that was discovered in the Constitution, a constitutional right that struck down acts of Congress or the views of the state legislatures, the views of the American people.

And so that's what's got a lot of people worried about the power that President Obama has now in selecting judges.

Fourth Circuit is important

Pam Karlan
Stanford University Law School
Yes, I think that President Obama will appoint judges who are different from the judges that a President Bush or a President McCain would have appointed, but I think they'll be excellent judges.

JUDY WOODRUFF: Well, two questions. Professor Karlan, just quickly, is that something individual people should be worried about? And where should we expect to see the changes? We know there are, what, four vacancies on the Fourth Circuit. That's Maryland, Virginia, North and South Carolina.

PAM KARLAN: Yes, I think that President Obama will appoint judges who are different from the judges that a President Bush or a President McCain would have appointed, but I think they'll be excellent judges. I think they will follow the Constitution. I think they will follow the law.

And I don't think there's a problem with differences in ideology, because judges are different. I think you will see a bigger change on the Fourth Circuit more quickly because there are more vacancies there than on any of the other courts of appeals, but over the next four or eight years, I think the courts will shift back to the center and away from the far right, which is the direction which they've been going for the past eight years.

JUDY WOODRUFF: And, Professor Cassell, in terms of where in the country we should look for change?

PAUL CASSELL: Well, I think you're right. The Fourth Circuit certainly is an area where there is an opportunity for the president -- new president to make some changes.

Part of the reason for that is that the Democratic Senate really has not moved through the process very many of the president -- of President Bush's nominees. So I'm hopeful one goodwill gesture that President Obama might be able to make is to re-nominate one of the stalled Republican nominees.

I think people forget that President Bush re-nominated two of the Clinton judges that had been held up during the election year. Perhaps we'll see that kind of a goodwill gesture coming soon.

JUDY WOODRUFF: All right, the federal judiciary, one of the many things we're going to be watching under this new administration. Professor Pam Karlan, Professor Paul Cassell, thank you both.

PAM KARLAN: Thank you.

PAUL CASSELL: Thanks.