For all the difficulties of President Obama’s second term, in one key area he’s been a huge success: getting judges confirmed to the federal bench. After a slow start in his first term, Obama has now had more judges confirmed than President Bush at the same time in his presidency. And last week Obama nominated Pamela Harris, a visiting law professor at Georgetown University, to the Fourth Circuit Court of Appeals—the type of federal judge Obama has not nominated previously. Liberals should rally behind Harris’s nomination, because she embodies, more than any other Obama judicial nominee, all three of the important qualities I previously described for federal judges: She will be a sympathetic vote to liberal causes; she has a great professional network that will give rise to the next generation of liberal legal elites; and she will be an eloquent and inspiring champion of liberal jurisprudence.
While Harris’s nomination is unlikely to earn the attention of say, an opening on the Supreme Court, she’ll be in a position on the Fourth Circuit Court to hear many more cases: For every case the Supreme Court decides, a Fourth Circuit Court judge decides approximately 10 cases. We can assume that Harris, who served on the board of directors of the main liberal legal organization, the American Constitution Society for Law and Public Policy (ACS), will be a solid progressive vote on one of the nation’s most important courts. The Fourth Circuit hears cases involving the federal government, since it covers many states with government offices—Maryland, West Virginia, Virginia, North Carolina, and South Carolina. Also, with North Carolina passing radically conservative legislation, the Fourth Circuit could decide the constitutional boundaries of certain conservative causes.
To really appreciate Harris’s importance, though, you need to understand the types of judges Obama has typically nominated to the federal courts, especially as he has picked up the pace of nominations—he has doubled his rate of confirmed nominees in 2014 as compared to 2013. Not many of these Obama nominees have networks outside of the corporate world, frustrating some, including Senator Elizabeth Warren. One study found that more than 70 percent of Obama nominees primarily had corporate legal careers prior to being nominated, and only 4 percent had public interest careers.
Harris’s professional experiences, by contrast, give her a unique—and exceptionally broad—network of professional relationships. She has experience in the corporate law world, as she was a partner at a leading Washington law firm. She has taught at the University of Pennsylvania Law School, Harvard Law School, and now Georgetown. She has served in the government in both the Office of Legal Counsel and the Office of Legal Policy in the Justice Department. Her experience on the Board of Directors at ACS gives her unique experience in an organization that is both a public interest and a social movement operation.
This is more than just an impressive resume. Federal judges hire the best and the brightest law students right out of law school as law clerks. When these clerks move on, a federal judge can use his or her network to open doors to a clerkship at the Supreme Court, a job in a presidential administration or on Capitol Hill, an academic position, or sometimes even a judgeship. A federal judge, then, creates a future legal elite that furthers his or her own legal worldview. Many conservative federal judges have excelled at this network function over the years, led by former Judge Michael Luttig of the Fourth Circuit and current Judge Brett Kavanaugh of the D.C. Circuit.
Some—but far fewer—judges to the left of center have done this as well, including several judges nominated by Obama. But because of these judges’ corporate backgrounds, if you talk to elite liberal law students today who aspire to a career outside of just the corporate world, you often find they want to clerk for judges nominated by Jimmy Carter or Bill Clinton. The range of Harris’s professional network could help change that. She could stand out for her capacity to open doors for the next generation of liberal legal elites in multiple legal and political arenas.
Federal judges also matter because of their voices—their ability to persuade others of their jurisprudential worldview, through their written opinions, academic articles and public appearances. The past generation of federal judges has featured many more conservatives with powerful jurisprudential voices. For instance, a judge like Richard Posner on the United States Court of Appeals for the Seventh Circuit has become a legal celebrity. With all of the quality judges that Obama has nominated, none has show a similar interest and aptitude.
Harris is different. She clearly has an interest in using her voice to project a liberal jurisprudential perspective. At ACS, she was active in thinking about what vision of law would be compelling for many different audiences. She commented on a book that tried to provide a liberal vision of the Constitution, and she co-edited another book purporting to do the same. Harris would not just be interested in using her voice, but she would be effective at it. She is an unusually engaging personality and speaker, and will convince the converted as well as persuade others.
Harris’s gender is another reason to applaud her nomination. The legal profession is famous for its glass ceiling. Obama has been quite good in nominating female judges, but when it comes to having powerful networks and effective public voices, female judges still lag behind their male counterparts. There are currently 55 active female judges on the federal courts of appeals. In the past five years, though, the 13 top judges at helping their law clerks obtain Supreme Court clerkships are all men. Moreover, one study found that only 1 of the 16 most cited federal appellate judges, as of 2008, was a woman. Harris would be in a good position to help crack the glass ceiling that female judges often face.
To be sure, Harris cannot make good on her potential if the Senate does not confirm her. And there’s some reason to worry that it won’t: There have been a few other Obama nominees with similar backgrounds who were never confirmed by the Senate. The minority party in the Senate tends to slow down or eliminate judicial confirmations right before a Senate election. Given that the Republicans have a good shot at taking back the Senate, they might block judicial nominees even more than usual minority parties do as November elections approach. Their ability to do so is reduced because of the change in filibuster rules, but there are still some procedural tricks that they can use. Moreover, several of the 55 senators who vote with the Democrats are facing tough re-election battles in red states and might be reticent to vote for Harris.
Still, there are more reasons to be optimistic. Within 24 hours of Harris’s nomination, several prominent conservative lawyers publicly announced that they were impressed with the nomination. And nominees face a different world than they did several years ago, when the Republican minority could block any nominee it pleased.
Presidents come and go, but federal courts judge their policy accomplishments long after Presidents leave the White House. By nominating Pamela Harris, with all that she has to offer, Obama has taken a major step towards ensuring that long after he has left the White House, his vision of the law will be in good judicial hands.
David Fontana is Associate Professor of Law at George Washington University School of Law.