How is the Obama legacy project going?

This piece originally appeared in my column for Huffington Post Books on July 8, 2013.

Jonathan Alter said recently that the 2012 election was “the most consequential” of his lifetime.  In his new book, The Center Holds: Obama and His Enemies, Alter describes this more in terms of the non-election of Mitt Romney than the re-election of Barack Obama:

AlterEven if Democrats blocked some of Romney’s bills, his election would have vindicated the Bush years and everyone associated with booting Obama, from Karl Rove to the Tea Party. It would have given comfort (and jobs) to those who considered climate change a hoax and the war in Iraq a noble cause. With Obama and his other achievements reversed, Obama’s residency might well have been seen by many historians as a fluke, an aberration occasioned in 2008 by a financial crisis and a weak opponent, John McCain.


Nearly all of Obama’s signature legislative accomplishments — Recovery Act, Affordable Care Act, Troubled Asset Relief Program, Dodd-Frank Wall Street Reform and Consumer Protection Act, GM and Chrysler reorganizations, repeal of “don’t ask, don’t tell” — were during his first two years in office.

Obama’s focused transition to the White House, a chief of staff (Rahm Emmanuel) with strong ties to the House leadership, and the requisite arm-twisting of holdouts on key votes certainly contributed to legislative success, but those were tiny slivers on the pie chart. “Like it or not,” the New Yorker‘s Ryan Lizza wrote in March, “for many years, Washington has been most productive when one party controlled both Congress and the White House.”

Lyndon Johnson’s celebrated legislative achievements were in reality only a function of the congressional election results—not his powers of persuasion. In 1965 and 1966, after the enormous Democratic gains of the 1964 election, Johnson was a towering figure who passed sweeping legislation. In 1967 and 1968, after he lost forty-eight Democrats in the House, he was a midget.

But Johnson’s significant legislative successes — Civil Rights Act of 1964, Voting Rights Act of 1965, Medicare, Medicaid — endured in the years after becoming law because Democrats had large majorities in the House and Senate for the next decade and because Richard Nixon was much more a reformer than his popular legacy would suggest.

Even after their respective years of big congressional majorities, Johnson and Obama both had legislative successes at the margins. Johnson’s Civil Rights Act of 1968 (Fair Housing Act) added enforcement teeth to anti-discriminatory housing laws, and Obama’s American Taxpayer Relief Act of 2012 preserved the expiration of the 2001 and 2003 Bush tax cuts on the highest income-earners.

By the end of 2016 — regardless of what happens in the 2014 midterm elections — Obama’s legislative brag list will be only marginally different than it is today. Congress may or may not pass comprehensive immigration reform, but the prospects for tax code reform, entitlement reform, new environmental legislation, new energy legislation, an infrastructure bank, a jobs plan, or dozens of other priorities fall somewhere between not likely and fatally doomed. There are areas like Obamacare and financial regulatory reform where congressional tweaks could make the laws more effective, but those likely won’t happen either.

The House will almost certainly stay in GOP control until after the 2020 redistricting at the earliest, and Senate Democratic leaders have shown little spine in reforming the rules that allow the minority party to use filibusters and holds to unilaterally shut down legislation and may find themselves in the minority after 2014.

Even if the Obama White House had the machinery to push an aggressive new legislative agenda, doing so would be both unnecessary and counterproductive. There is only so much bandwidth in the administrative branch for absorbing new or different programs, and the Obama administration already has as much as it can handle. The implementation of Obamacare and financial regulatory reform are both enormous undertakings that will take years to absorb, and the implementation of Obamacare is somewhere between off schedule and a big mess.

Presidents, though, do not succeed by legislation alone. A congressional focus of the kind the Obama White House undertook in its first two years would distract from the usual second-term objectives: foreign policy, scandal management and judicial nominations.

Only six months into a second term, it’s far too early to tell what impact foreign policy and scandals (actual scandals — not non-scandals like IRS, Behghazi and Edward Snowden), but President Obama’s is already far behind the pace in leaving his mark on the judiciary. The White House has named only 31 nominees to fill 84 District Court and Court of Appeals vacancies. Of the 23 seats that have been vacant for 18 months or longer, the president has named only nine nominees — mostly in red states where issues important to President Obama like voting rights, Medicaid expansion, etc., are most at risk — effectively writing off many of those judgeships.

Democrats have advanced several arguments for why nominees are getting bottled up in the Senate — most of which are variations of the Senate is laughably dysfunctional — but that doesn’t explain the Obama administration’s failure to identify nominees for even half the current vacancies.  If leaving more than half the judgeships empty is a strategic move by the White House, I can neither imagine an explanation nor have seen an explanation advanced for the upside of such an approach.

There are many things that Obama cannot control about his legacy — whether he gets to appoint another Supreme Court justice, who the next president will be, etc. — but he should use every tool available to leave the broad mark on the judiciary that he is constitutionally required to make.

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Jeffrey Toobin on future of the Roberts Court

This piece originally appeared in my column for Huffington Post Books on June 4, 2013.

Jeffrey Toobin The Oath

Jeffrey Toobin’s 2007 book The Nine: Inside the Secret World of the Supreme Court — the most revealing insider account of the Supreme Court since Bob Woodward and Scott Armstrong’s 1979 classic The Brethren — was the story of how the court of Bush v. Gorebecame a moderating force against the Bush administration on issues like abortion and the legal rights of enemy combatants post-9/11.

In The Oath: The Obama White House and the Supreme Court, which is just out in paperback from Anchor Books, a division of Random House, the veteran New Yorker staff writer, CNN analyst and Supreme Court chronicler finds a court transformed. After 11 years in which which the same nine members served on the court, Chief Justice John Roberts replaced Chief Justice William Rehnquist in 2005 and Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006.

Although the two new justices in the mid-2000s did not change the 5-4 conservative majority on the court, they forged a different kind of conservative majority — one that made an aggressive and confident right turn on issues like affirmative action, search and seizure, campaign finance, and voting rights. (O’Connor, meanwhile, is not so sure the court should have gotten involved with the 2000 election.)

Toobin and I discussed his books and the current state of the Supreme Court earlier this week by email, which I lightly edited below.

In The Nine, you reported that Justice David Souter would eat an entire apple — core and all — every day for lunch when he was on the court. Did you come across any more weird anecdotes in reporting for The Oath?

That the reason Roberts and Obama messed up the oath on January 20, 2009, was because a congressional secretary didn’t download the attachment to an email. The attachment was Roberts’ version of the oath, but the secretary never passed it along to Obama’s staff.

One of the big takeaways from The Oath is that the conservative majority has moved the Supreme Court to the right. Isn’t that just what majorities do — move the court in their own ideological direction?

That is what majorities do — just as the liberal majority in the Warren Court moved the court and the country to the left. My preference on these issues is simple candor. Too often the judges (on both sides) simply insist that they are doing “the law,” which has nothing to do with politics. My view is that law, especially constitutional law, has everything to do with politics.

Do you think the record numbers of vacancies in the district courts and the D.C. Circuit reflects more a dysfunctional Senate confirmation process or Obama’s lack of interest in the courts relative to other priorities?

Hard to separate out the two. I think Republican obstruction is probably the bigger factor, but Obama’s lack of interest in the subject of judicial appointments is one of the mysteries of his presidency. It does appear that he is taking a more aggressive tack, with a group of nominees to the D.C. Circuit soon to be unveiled. But the lost opportunity of his first two years in office, with 60 Democratically controlled Senate seats, will never be recaptured.

The big decisions from the current term will be delivered in the next few weeks. What decisions are you most interested in seeing?

There are four huge cases still to go. Fisher on affirmative action, Shelby County on the future of the Voting Rights Act, and the two same-sex marriage cases about the Defense of Marriage Act and Proposition 8. The first two cases will be an important signal of how the court will address the great question of twentieth century law — race. And the second two will tell us about a great issue of the twenty-first — gay rights.

What issues do you expect the court will take up in the next term?

When Republicans recaptured statehouses in the 2010 midterms, they set about restricting abortion rights in new and inventive ways. By next term, several of these issues will arrive before the justices. And many of them have never addressed abortion on the court. Also, the Roberts court seems determined to undo racial preferences and affirmative action, and any issues left open this term may soon return.

Aside from his Obamacare decision, do you see Chief Justice Roberts positioning himself to preside over a court where he may not always have a conservative majority?

Tell me who wins the 2016 presidential election, and I’ll tell you the answer to that question. The ideological breakdown of the court is stable and likely to remain that way for the rest of Obama’s term. (I expect Ginsburg will retire and be replaced by someone like-minded, probably Sri Srinivasan.) The real question is who will replace Scalia and Kennedy, who will both be in their eighties under the next president.

Given the strong odds that a Democrat elected president in 2016 would have an opportunity to shift the court from a conservative to a liberal majority, if one of the conservative justices passed away and left an open seat, do you think the Senate confirmation process could simply shut down and leave the court with eight justices for a term or longer?

I don’t see how that would be possible. Supreme Court appointments are sufficiently important that the Democratic majority in the Senate would force Republicans to engage in an actual talking filibuster, and those cannot go on forever. Refusal to allow a vote on a Supreme Court nominee would almost certainly result in the Democrats changing the rules in the Senate to restrict filibusters on judicial nominees. So I don’t think Republicans could hold up Supreme Court nominees indefinitely.

You wrote a profile of Justice Ruth Bader Ginsburg a few months ago in The New Yorker. Did you get the sense from talking to her and the people around her that she would likely retire at the end of this term?

Not this term. And probably not next term. But very possibly in the third year of Obama’s second term.

In The Oath, you quote Justice Stephen Breyer as saying: “It is not often in the law that so few have so quickly changed so much.” Do you think a liberal majority anchored by Justices Breyer, Elena Kagan and Sonia Sotomayor would be more inclined to preserve the court’s recent conservative decisions like Citizens United on the basis of precedent or reverse them?

Hard to speculate about something that is really way off and may never happen. My sense is that the liberals would try to limit various decisions they don’t like (such as Citizens United) and possibly overturn them down the line. But it would be a long process.

The Nine and The Oath are essentially a two-volume history of the Supreme Court since 2000. Are you planning on writing another volume?

Not immediately and probably not for my next book. But the Supreme Court is a great subject, and it’s not going away. For better or worse, I don’t think the court (and the reading public) have seen my last word on the subject.