POLITICS JULY 17, 2009
Attention was understandably focused on Sonia Sotomayor this week, as her confirmation hearings unfolded. But what about Obama's other judicial nominees? The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.
The obvious reason is that federal judges, like Supreme Court justices, have life tenure--which means that younger judges serve longer on the bench and, all else being equal, have more influence over the law. (And the influence of circuit-court judges is considerable: Although the Supreme Court may be the last word on major constitutional issues, the lower courts matter just as much, if not more, in the administration of the law. This past year, the Supreme Court decided 83 cases, while the federal circuit courts disposed of 61,104.)
But the age of federal judges matters for another reason as well. Past administrations have placed their brightest young legal minds on the lower courts to give them judicial experience, making them stronger candidates for higher judicial office. These days, it has become a prerequisite for Supreme Court justices to have served on a circuit court. And if circuit nominees are not relatively young, then they will be too old for elevation to the high court by the time they have the necessary experience. The makeup of the Roberts Court illustrates this point: All nine justices served as circuit judges, and their average age when successfully nominated to the circuit courts was 44--eleven years younger than the average age of Obama's nominees. The youngest, Anthony Kennedy, was nominated at 38. The oldest, John Paul Stevens and David Souter, were nominated at only 50.
And so Obama's first five circuit-court nominations raise serious concerns. Their average age of 55 (they are 51, 52, 54, 58, and 60) is considerably higher than the average age of nominees under recent past presidents. According to regional circuit-court data compiled from the Federal Judicial Center, Reagan's nominees were, on average, 50 years old; George H.W. Bush's averaged 49; and George W. Bush's averaged 50. Even Clinton's nominees were under 52 on average.
Moreover, roughly a quarter of the circuit-court nominees put forward by the past three Republican presidents--and 15 percent of those chosen by Clinton--were below the age of 45. Reagan nominated some of the brightest young legal minds in the country, including Alex Kozinski (then 34), Frank Easterbrook (36), Kenneth Starr (37), J. Harvie Wilkinson (39), Doug Ginsburg (40), and Richard Posner (42). The first President Bush nominated Michael Luttig (36), Samuel Alito (39), and Clarence Thomas (41). And George W. Bush continued this practice, nominating Neil Gorsuch (38), Brett Kavanaugh (41), Raymond Kethledge (41), Jeffrey Sutton (42), and William Pryor (42), among others. Although we realize Obama is early in his presidency, so far none of his circuit court nominees are in their 40s, let alone their 30s.
Because Republicans have done a better job than Democrats of nominating young judges, the lower federal courts have had a sustained and substantial conservative presence well beyond the tenure of Republican presidents. Decades after their nominations, judges like Posner, Wilkinson, and Kozinski are major figures in the legal world. The credibility and exposure that come from many years on the federal bench have allowed these judges to exercise enormous intellectual influence.
The Republican practice of appointing younger circuit-court judges has also proved crucial for recent Supreme Court nominations. When Bush searched for nominees to replace William Rehnquist and Sandra Day O'Connor, he benefited from a deep bench of experienced and qualified conservative federal judges. Bush settled on John Roberts (initially nominated at 36, though never confirmed; then re-nominated and confirmed to the D.C. Circuit at 47; and barely 50 when elevated to the Supreme Court) and Samuel Alito (39 when nominated to the Third Circuit; 55 when nominated to the Supreme Court). Among Bush's other contenders, Fourth Circuit Judge Michael Luttig was 36 when nominated to the bench and 51 when interviewed for the Supreme Court; Fifth Circuit Judge Edith Jones was nominated at 35 and up for the Supreme Court at 56.
By contrast, when Obama searched for Souter's replacement, he did not have a very large pool of experienced and younger judges from which to choose. Sotomayor was one of Clinton's youngest nominees, only 43 when selected for the Second Circuit and only 54 when nominated to the Supreme Court (she is now 55). There were other, younger stars of the legal left attracting attention from some commentators (Pamela Karlan at Stanford Law School, for instance) but none had the judicial experience that seems politically necessary for a Supreme Court appointment.
If the early trend in this administration's circuit-court nominations continues, the danger to its judicial legacy should be obvious. Obama brought generational change to the White House. He is just 47. He was only 43 when he arrived on Capitol Hill. With 60 Democratic votes in the Senate, and a new political reality in Washington, the president should make it a priority to nominate federal judges who are his age, or younger.
David Fontana is associate professor of law at George Washington University. Micah Schwartzman is associate professor of law at the University of Virginia.