Lifetime achievements

U.S. presidents serve a maximum of eight years, and their attorneys general come and go—but long after a president leaves office, the judges he nominates make decisions with wide-ranging consequences.

President Barack Obama has, without much notice, filled almost a third of the judiciary with his appointees–many of them controversial because he didn’t need Republican votes for Senate confirmation. When Obama took office, a majority of the nation’s 11 circuit courts had Republican-nominated majorities. He has reversed that. Unless Republicans win control of the Senate, Obama will continue to reshape the judiciary through party-line confirmation votes.

The president appoints with Senate confirmation what are known as Article III judges. They include members of the Supreme Court, the circuit courts, district courts, and the Court of International Trade–a total of 874 judgeships. Leaving out the nine-member international trade court, the Senate has confirmed 268 of Obama’s nominees to the federal bench, according to a June report from the Congressional Research Service. That number has ballooned since Senate Majority Leader Harry Reid in 2013 jettisoned the 60-vote supermajority required for confirmation.

Even when Obama is merely swapping out one Democratic-appointed judge for another, he is extending Democratic hold on those judgeships for a decade and beyond. His appointments to circuit courts especially create a new raft of potential Supreme Court nominees. Legal experts don’t like to acknowledge the political nature of judges, but Republican-appointed judges often rule differently than Democratic-appointed ones.

Obama is about on pace with President George W. Bush’s appointments to the federal bench, although the Senate (then requiring 60 votes) rejected more Bush nominees, and rejected them at a higher rate than President Bill Clinton’s or Obama’s. Before Reid changed Senate rules, Senate Republicans had slowed down the confirmation of nominees. The Congressional Research Service also reported that Obama was slow to nominate judges compared to Bush or Clinton.

But since Reid deployed the so-called “nuclear option,” Obama’s nomination and confirmation pace has gone into turbo-speed. Thus far Obama has the highest percentage of confirmed circuit court nominees of the last three presidencies, a huge accomplishment because of the power of circuit courts: They decide the vast majority of federal cases, while the Supreme Court hears only the tiniest sliver of appeals.

Most circuit cases appear before a three-judge panel, but when the full court decides to rehear a case, that’s called rehearing en banc; and if a panel ruling doesn’t go the way of the majority, the new Democratic-majority circuit courts can order en banc hearings. The D.C. Circuit Court of Appeals, the most important circuit court because it oversees federal agencies, now has a majority of Democratic appointees.

Obama appointees have already had an influence at the circuit level. An Obama nominee authored the 4th Circuit ruling striking down Virginia’s marriage law, a decision the Supreme Court upheld by declining to hear the appeal. The most striking case is at the D.C. Circuit, Halbig v. Burwell, where a three-judge panel ruled that Obamacare did not permit tax subsidies for insurance bought on a federal exchange. That ruling struck at the heart of the mechanisms that made the healthcare law work. But the federal government appealed to the full court, which with fresh Obama appointees now has a majority of Democratic-appointed judges. The court agreed to an extremely rare en banc hearing, which will likely go in the government’s favor because of the court makeup.

One of the most advanced nonprofit cases against the contraceptive mandate, Priests for Life v. HHS, is pending at the D.C. Circuit as well. The initial three-judge panel handling the case was made up of two Republican appointees and one Clinton appointee, and that panel granted Priests for Life a temporary injunction against the mandate, pending appeal. But then in March the court switched the makeup of the panel scheduled to hear the case to a different Clinton appointee and two new Obama appointees: One of them, Judge Nina Pillard, had previously written articles about women’s fundamental right to contraception and abortion. The court should issue a ruling on the case soon.

By a simple majority the Senate confirmed Pillard—a former lawyer at the American Civil Liberties Union and NAACP, a Justice Department official, and Georgetown Law professor—to the D.C. Circuit Court in December 2013. Pillard has a controversial paper trail: In one law review article, which legal expert Ed Whelan from the Ethics and Public Policy Center highlighted, she wrote that the right to abortion frees women from “conscription into maternity.” She lambasted the “deceptive images of fetus-as-autonomous-being that the anti-choice movement has popularized since the advent of amniocentesis.” Senate Republicans and one Democrat, Sen. Mark Pryor of Arkansas, voted against her confirmation. Obama has now appointed four judges at the 11-member D.C. Circuit.

Pillard is just one of the controversial nominees confirmed because she didn’t have to pass a 60-vote threshold. The Senate also confirmed to the 1st U.S. Circuit Court of Appeals Harvard Law professor David Barron, a former Justice Department official who wrote a memo creating the legal authority for drone strikes against American citizens. Republicans did not support his nomination, and two Democrats also voted against him. Now Obama is facing the first defeat of one of his nominees by members of his own party. Obama nominated Judge Michael Boggs to a district court, but Senate Democrats think Boggs—who voted for measures regulating abortion as a Democratic legislator in Georgia—is too conservative for a federal court.