One of the stupidest clichés circulating in law and politics is that a president should not use an ideological litmus paper when making his appointments to federal courts. Of course he should; moreover he always does.
The idea that a president should only be interested in legal competence is almost too crazy to criticize but I will do so, anyway. There are thirteen high courts of appeal and many lower federal courts. There are literally thousands of judges competent to fill the slots on them. Why, then, wouldn’t a president choose from among those who share his philosophy?
It is no accident that Republican presidents pick conservative judges and Democratic presidents select judges with liberal leanings. Consider the abortion controversy. Clearly, the issues are controversial and good reasoning can be applied by judges who think Roe vs. Wade was wrongly decided and judges who love the decision. Neither side has a lock on the “right way”. President Bush could hardly have helped but want appointees like the two most recent ones who are not thrilled with how the case was decided and will do all in their power to mitigate the damage they believe was done by it.
By the time Clinton left office, 77 seats on the 13 highest federal courts of appeal were Democrats and 74 were Republicans. 27 seats were vacant. Clinton had changed the balance. As of 2008, Democrats had 66 seats and Republicans 102. 11 seats remain vacant. When Obama gets through, the balance will be restored.
Today’s Supreme Court justices are by and large “law and order” guys who tend to overlook or welcome the expansion of police powers. Civil rights are looked upon skeptically. It is nonsense to say that this is because they know, better than liberal judges do, that the role of a judge is to interpret the law, not to legislate from the bench. Every judge, no matter how liberal he is, believes his job is to interpret law, not make it. Interpretation, like beauty, is in the eye of the beholder.
The work of the federal courts is mainly at the appellate level and last year these courts decided 31,000 cases. The Supreme Court took on only 75 cases. Thus, as you can see, the appellate courts are nearly always the last court of appeal. In that case, what is crucial is that Obama should focus on the appellate courts and not worry too much about the High Court. He should make no utterances about litmus tests and just get on with the business of appointing good people whose outlook on law approximates his own. That’s how it’s always been and how it should remain.