In a long and interesting essay in the New Republic, law professor Justin Driver theorizes that a leading reason that President Obama has (in Driver’s view) “thus far appointed overwhelmingly moderate judges” is that Obama’s view of the judicial role has been much more influenced by Cass Sunstein than by Laurence Tribe. While Driver acknowledges that “more issues unite than divide” the constitutional visions of Sunstein and Tribe, he highlights that Sunstein has criticized Tribe’s “unhealthy obsession with the Warren Court and its legacy” and has “advocated redirecting constitutional energy into democratic arenas.” (The quoted language is Driver’s summary of Sunstein’s critique.)
Driver laments the “grim truth” that Obama “has yet to have a single judge or justice confirmed who is considered a leading intellectual light for progressive constitutional interpretation”:
Obama’s failure to install judges who advance truly progressive constitutional views will doubtless have a profound impact in the years and decades to come. As an immediate matter, his judicial moderates appear generally uninterested in reversing the steady, conservative-led erosion of criminal defendants’ rights, including the Fourth Amendment’s prohibition against unreasonable searches and seizures and the Fifth Amendment’s protections recognized by Miranda. Nor do Obama’s judges seem likely to challenge other disconcerting features of the prevailing judicial order, which jealously protects the interests of corporations and high-ranking government officials but turns a blind eye to casualties from the war on drugs and the funding inadequacies that plague students attending poor public schools.
Significant as these issues are, though, even they fail to capture fully the consequences of an excessively deferential judiciary. Federal judges possess the ability to place items on the national agenda, helping elected officials and citizens alike to realize when the nation’s actions betray its principles. Historically, politicians have passed laws that consolidate and build upon such judicial rulings, even when the rulings themselves are initially controversial. Those laws then serve to expand constitutional understandings of the minimal requirements for a society that citizens recognize as just. But a judiciary composed only of conservatives and moderates will constrain societal notions of constitutional justice and risks rendering stagnant the democratic ideals that judges are charged with protecting. If Obama continues with his current approach to judicial appointments, what should be the most important legal battles being fought 20 years from now could well go unwaged.
I don’t dispute Driver’s observation that Obama has yet to appoint a “leading intellectual light for progressive constitutional interpretation.” His characterization of the “prevailing judicial order” is obviously far more contestable. Ditto for his claim that Obama has “thus far appointed overwhelmingly moderate judges,” although much of the dispute over that proposition may be rooted in the vagueness and malleability of the term “moderate.” (Given the strong leftward tilt among law-school faculties, it’s not surprising that legal academics may extend the term “moderate” to folks who are well left of center.) But I nonetheless find Driver’s lament about the long-term consequences of Obama’s judicial appointees to be noteworthy—and, from my perspective on the proper role of the courts, encouraging.
In case anyone thinks that it might detract from my appreciation of his essay, I’ll note that Driver briefly mentions me as someone whose early warnings about the sort of judges Obama would select now “sound histrionic.” (Let’s check back on that in a decade or so, when there’s a meaningful record for assessment.)