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Analysis: Republicans lead Obama in war for judicial dominance

by

By Joan Biskupic

WASHINGTON (Reuters) - When Barack Obama was elected president, critics and supporters alike thought the Democrat would move swiftly to appoint strong liberal judges to balance out Republicans' longstanding push for a conservative judiciary. At the nation's 13 powerful U.S. appeals courts, that has not happened.

Obama's 30 appointees have generally been moderates who mainly served on lower courts and were often selected in consultation with Republican senators. The pattern contrasts with Obama's Republican predecessors, dating back to Ronald Reagan, who quickly put forth prominent young conservatives, many of whom came from academia and had past political experience.

Notably, President Obama has not added a single judge to the powerful U.S. Court of Appeals for the District of Columbia Circuit, where there are three vacancies on an 11-member panel dominated by Republicans. He is about to become the first president in at least half a century to finish a full term without an appointment to the bench known as the nation's second highest. The D.C. Circuit often has the last word on a president's domestic agenda and has been a stepping-stone for Supreme Court justices.

Administration officials say that while the president wants to change the balance in the courts, he does not want protracted fights with Republicans in the deeply divided Senate, which votes on federal judicial nominations. Officials also say that the president was focused on the healthcare overhaul and legislation to address the financial crisis.

"There were competing priorities," said White House counsel Kathryn Ruemmler. "It's like anything else in life: Something has to give."

Of the D.C. Circuit, she said: "In an ideal world, if the only thing that anyone cared about were getting judges confirmed, we would have had a nominee in 2009." Supreme Court vacancies in 2009 and 2010 also were diversions, Ruemmler said.

Public attention to the judiciary naturally focuses on the Supreme Court, which sets the law of the land and where Obama appointees Sonia Sotomayor and Elena Kagan sit. They both vote generally with the liberal wing.

But the justices hear less than 1 percent of appeals, so the country's appeals courts often have the last word on a case and in establishing legal principles. U.S. district court judges, on the first step of the three-tier federal judiciary, rule on individual cases and do not set precedent.

On the DC Circuit, where there are five Republican appointees and two of the three Democratic appointees are in their 70s, two vacancies existed when Obama took office in January 2009.

It was not until September 2010, nearly halfway through his term, that he made his first nomination: Caitlin Halligan, now 45, general counsel for the Manhattan district attorney's office and a former solicitor general of the state of New York. Republicans blocked her nomination in 2011, and Obama has since renominated her. If Obama wins reelection, he would likely continue to back Halligan, but her fate depends on whether GOP senators continue to resist. Democrats now hold a slight majority in the Senate, and it takes a supermajority, 60 votes, to cut off debate and hold a straight up or down vote on a nominee.

In June, Obama offered a nominee for one of the other D.C. Circuit vacancies, Sri Srinivasan, principal deputy U.S. solicitor general. Srinivasan is supported by Republicans including former two solicitors general, Paul Clement and Theodore Olson. A third vacancy arose with the semi-retirement of Douglas Ginsburg, a Reagan appointee, in October 2011, and Obama has yet to nominate a replacement.

Liberals have criticized Obama, who was the first black president of the Harvard Law Review and taught constitutional law at the University of Chicago, for what they see as foot-dragging. At a recent legal conference, Walter Dellinger, a former top Justice Department lawyer in the Clinton administration, called the lost early opportunity at the D.C. Circuit "an act of judicial-political malpractice that should be legendary."

NO MATCH FOR BUSH AGGRESSION

Obama's behavior is in stark contrast to that of recent Republican presidents, including his immediate predecessor, George W. Bush. Four months after entering the White House, Bush unveiled a slate of 11 appeals court nominees in a special ceremony. Many were conservative all-stars, including John Roberts, who had worked in the Reagan and George H.W. Bush administrations. Roberts, who was then a D.C. Circuit choice, won confirmation in 2003 and in 2005 was elevated to the Supreme Court as chief justice.

Obama moved slower overall, with 12 appeals court nominations in his first year, compared with 29 nominations by Bush.

Even when partisan fights erupted over a nominee, Bush kept up a flood of new names to the Senate. His method traced to President Reagan's fabled screening for young, ideological thinkers and forceful efforts to win confirmation.

Reagan wanted to counteract what he viewed as "liberal activism," judges who voted for abortion rights and became more involved in social dilemmas such as inferior schools and crowded prisons that had traditionally been the domain of legislatures.

Although Reagan's last appointments were made nearly a quarter-century ago, they continue to wield great influence: Fifty-five of his appellate appointees still sit on cases. That is just shy of the number of sitting appointees of the other two-term presidents who served more recently, 57 each for Bill Clinton and George W. Bush, according to Federal Judicial Center figures.

Among the leading lights from the Reagan era still hearing cases are Richard Posner and Frank Easterbrook on the Chicago-based 7th Circuit, and J. Harvie Wilkinson, on the Richmond-based 4th Circuit in Virginia. Some age gaps are striking: Andrew Hurwitz, whom Obama in June appointed to the San Francisco-based U.S. Court of Appeals for the 9th Circuit, turns 65 this month and is nearly three years older than Judge Alex Kozinski, a Reagan firebrand still sitting on the 9th Circuit.

Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst, who has tracked judicial data since the 1960s, said Obama's appointees generally lacked past political experience, unlike most Republican appointees, and have been, on average, four years older.

KAVANAUGH THE CLASSIC

Currently on the D.C. Circuit, Judge Brett Kavanaugh perhaps best embodies the class of conservatives the Republicans have long sought for appeals courts. Before President George W. Bush nominated him in 2003, Kavanaugh was a top administration lawyer who helped shepherd judicial candidates through the Senate. Kavanaugh previously was a prosecutor on Ken Starr's investigation of President Clinton and helped write the report that recommended his impeachment.

Liberal Democrats tried to defeat Kavanaugh and might have succeeded had Bush not been so committed to pushing his appointment through. Administration lawyers, who cut deals with senators over which controversial Bush nominees would get floor votes and which would be blocked, ensured that Kavanaugh was never blackballed.

After three years of Senate maneuvering, Kavanaugh's nomination was approved by a vote of 57-36. He was sworn in at a Rose Garden ceremony in June 2006 hosted by President Bush.

The conservatives' outsized advantage on that powerful court regularly shows up in rulings. In an August decision written by Judge Kavanaugh, the majority struck down an environmental rule requiring states whose power-plant emissions were harming air quality of states downwind to reduce emissions. Kavanaugh has stood out in opposing other environmental regulation.

The D.C. Circuit also ruled that cigarette companies need not follow U.S. mandates for graphic warning images on packages. The author of the latter decision was another provocative Bush appointee, Janice Rogers Brown, who opposes much economic regulation.

In the decision invalidating a 2011 Environmental Protection Agency effort to cut emissions, Kavanaugh said the EPA had exceeded its authority by forcing states to reduce emissions by more than they contributed to the pollution problem. He said the EPA reached "far beyond" its statutory authority and employed "rickety" logic.

If Republican Mitt Romney wins the White House, Kavanaugh would be a leading contender for a Supreme Court appointment, say conservatives and liberals who worked on past nominations.

Obama's approach to nominating judges for the federal appeals courts, particularly the D.C. Circuit, has surprised conservative advocates who feared he was about to name people who could undercut their judicial gains.

Two days after Obama's January 20, 2009, inauguration, former Reagan administration Attorney General Edwin Meese, an architect of the Republican effort to remake the courts in the early 1980s, joined three other conservatives in a warning letter to Republican senators.

They predicted Obama would appoint people who would carry out "the most radical judicial activist philosophy of any president in American history." They noted that Obama had said judges should use "empathy" in deciding cases, and they suggested his nominees would rule based on personal views rather than the law. To keep the pressure on, they then set up meetings with Senate Republican leaders. They were girding for a larger battle that never came.

Said Leonard Leo, who was one of the four and a longtime officer of the conservative Federalist Society: "It became apparent that this was not a very high priority for the administration."

(Editing by Amy Stevens, Martin Howell and Prudence Crowther)

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