Democratic alarmist and media analysts have somberly concluded that a Republican Senate “will have a lasting and important impact on the federal judiciary for decades to come.” 90 federal judicial appointments are expected to arise in the next two years—that’s a full one out of every ten federal judges on the bench right now—and these writers claim that Republicans will be able to mold the judiciary by blocking progressive Obama nominees.
What these writers miss is that Obama has already exhausted politically viable appointments and that the remaining vacancies are intractable even with a Democratic Senate. Take, for example, the deep South’s 5th Circuit Court of Appeals, which the American Bar Association considers “the nation’s most divisive, controversial, and conservative appeals court.” Just recently, the 5th Circuit penned two landmark decisions that upheld a Texas voter ID law and a restrictive abortion law that will leave Texas with no abortion clinics west or south of San Antonio.
Given these conservative decisions, one would expect Obama to have filled the 5th Circuits two vacancies with liberal judges in a heartbeat, especially now that triggering the “nuclear option” has prevented Republicans from filibustering federal judicial appointments. But the positions have been remained unfilled for up to two years. These judicial appointees need some endorsement from home-state senators (unlikely to come from Texas’s Ted Cruz), so Obama has been limited in his ability to fill remaining vacancies. A Republican Senate makes little difference: even with a Democratic Senate, many of the 90 upcoming vacancies would remain unfilled.
Finally, for Republicans, control of the Senate is too little, too late. Obama has already transformed courts across the country by confirming 280 judges—an impressive one in every three judges currently serving. In 2008, Republican appointees dominated ten of the thirteen circuit courts of appeals; now Democratic appointees control nine. Obama may well continue to appoint more judges—they will just need to be more centrist than progressive. Even if a Republican Senate limits Obama’s ability to appoint an additional 90 judges, the 280 he has appointed will ensure more liberal decisions for years to come.