President Obama’s nomination of David Hamilton for the Seventh Circuit Court of Appeals is, I suspect, the beginning of an avalanche of left-wing appellate court nominees. The next nominee may well be Maryland district court judge Andre Davis. Judge Davis has a reputation for making rulings favorable to criminal defendants and for having these rulings reversed, including by Clinton appointees to the Fourth Circuit.
Is it wise politically for Obama to load the federal bench with left-liberals? A bi-partisan panel at the Heritage Foundation recently answered that question in the negative, according to this report by Quin Hillyer. The liberal member of the panel, former Clinton adminisration Solictor General Walter Dellinger, agreed with the more moderate Stuart Taylor and with conservative Jonathan Adler on this point. Dellinger explained that “the judicial philosophy issue breaks in favor of conservatives across the country.”
My view, however, is that Obama is, as usual, one step ahead of the rest of us. Right now, with everyone focused on the economy, conservatives will not get any mileage out of the confirmation of liberal judges. Nor is the gradual appearance of more liberal court of appeals decisions likely to garner much attention.
If, several years from now, Obama’s economic policies are seen as having failed, it’s quite possible that a track record of leftist judicial nominees, and the some of the decisions they produce, will add marginally to the force of a populist backlash. But that backlash will be severe in any case. So it makes sense for Obama, a committed legal leftist, to go for broke on judicial nominees, especially since the MSM is fully prepared to give him cover by calling his selections “moderates.”
This path may be too audacious for Walter Dellinger, but it’s probably the smart move.