With Clock Ticking Down, Obama Polishes Judicial Legacy The profile of the judiciary has already changed significantly under the president, especially when it comes to the number of African-Americans, Hispanics and Asian-Americans he's appointed.

With Clock Ticking Down, Obama Polishes Judicial Legacy

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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.


And I'm Robert Siegel. Republicans have a decent shot at taking control of the U.S. Senate in November. That means President Obama could have as little as nine months left to shape the judiciary he'll leave behind. Senate Democrats positioned themselves to help with that last fall, when they eliminated the filibuster for most judicial nominees. But as NPR's Ailsa Chang reports, Republicans are still finding ways to slow things down.

AILSA CHANG, BYLINE: When Senate Republicans lost their ability last fall to filibuster judicial nominees, many of them claimed the federal bench would change forever. Lindsey Graham, of South Carolina, predicted the White House would start naming ideological, left-leaning candidates to these lifetime appointments just because it could.

SEN. LINDSEY GRAHAM: The political nature of who you pick changes because you're not going to have to accommodate anybody on the other side. So I think you'll see over time, the flavor of the judiciary change.

CHANG: But in the four months since, observers say that the Republican nightmare isn't exactly panning out. In fact, seven nominees have gotten confirmed this year without a single no vote from a Republican.

MICHAEL GERHARDT: Well, that tells you something. It tells you something that if they're getting confirmed by those numbers, these are not what I would describe as problematic nominations.

CHANG: Michael Gerhardt teaches constitutional law at the University of North Carolina. And he says if you look at the nominees coming down the pipeline, you'll notice a trend: mostly moderate, centrist picks.

GERHARDT: Typically, President Obama's nominees are people that have what we'll call mixed records. And I don't mean anything critical by that; mixed by - the sense that they aren't being ideological. They're deciding cases based on the facts and they tend to, therefore, go one way or the other depending on those facts.

CHANG: Gerhardt says one reason the president may not be pushing overtly ideological candidates is because he is facing reality. Even without the filibuster, Republicans can still gum things up through what's called the blue slip system: Senators can block judicial nominees from their home states. In fact, in a compromise with Georgia's two Republican senators, the White House is pushing a district court nominee many Democrats are slamming as too conservative.

Russ Wheeler, of the Brookings Institution, says there's another reason the president hasn't been making conspicuous ideological choices.

RUSS WHEELER: I think he's less convinced than other people are that the route to social change lies principally through the judiciary; that instead, lasting social change must rely on legislative change.

CHANG: Now it's still early, and the White House may end up naming less moderate candidates in the months to come. But in the meantime, the profile of the judiciary has already changed under Obama. When he took office, 60 percent of the active judges on the appeals courts were Republican appointees. Now, that balance is 48 percent Republican, 52 percent Democratic. And Wheeler says if you look at the diversity of the bench, there's no question: Obama is shattering records.

WHEELER: If present trends continue, he will have appointed more African-Americans than any other president, more Hispanics than any other president, more women than any other president, and many more Asian-Americans.

CHANG: And add to that professional diversity. Nan Aron of Alliance for Justice, a liberal advocacy group, says Obama is putting different kinds of lawyers on the federal bench.

NAN ARON: I'm pleased to see that he's looking to put on the bench more public defenders, criminal justice lawyers, civil rights lawyers, public interest lawyers.

CHANG: But the clock is ticking down. There are currently 86 judicial vacancies. Even if Democrats retain control of the Senate, Carl Tobias, of the University of Richmond Law School, says there's no way Obama has the time to fill all the slots.

CARL TOBIAS: You have to have the recommendations from the senators. It takes three months for people to go through the White House, and then you have to go to committee; have a hearing, have a committee vote; and a floor vote.

CHANG: And Senate Republicans say they have no intention of speeding things up. Ailsa Chang, NPR News, the Capitol.

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