I don’t recall that in my youth people spoke all that much about a president’s “legacy.” In recent decades it’s been all the rage, though, and that legacy usually gets evaluated and re-evaluated while a person is president, and not just afterwards.
Legacies are written by the winners, and the academics. What will Obama’s legacy be? It depends who’s talking or writing, and it depends what happens next.
I see his legacy as ISIS, for example, Obamacare, and a heightening of racial tension. I also see the election of Donald Trump as part of his legacy. Trump was elected for many reasons, but one of them was to create a legacy that involves undoing some of Obama’s would-be legacy (particularly concerning immigration, but certainly not limited to that). Whether Trump will succeed remains to be seen.
Lately we’ve had a dramatic demonstration of a particular part of Obama’s legacy, one that I am fairly certain is very dear to Obama’s heart and which has directly affected the ability of his successor Trump to do what he was elected to do. That legacy concerns the makeup of the federal judiciary, something to which a lot of voters don’t pay much attention. And yet it affects us dramatically in a host of ways, and its effects can persist.
President Trump will get to appoint many federal judges, too, now that the nuclear option has been activated (by the Democrats in the Senate, back when Obama was president) for these positions. That’s a sort of Obama legacy, too, and it’s a significant one.
The following was written in 2014, and it describes how Obama has changed the federal judiciary’s balance:
When President Barack Obama entered the White House in 2009, the federal appeals court based in Virginia was known as one of the most conservative benches in the country.
Two Obama terms later, Democratic appointees hold a 10-5 majority on the 4th U.S. Circuit Court of Appeals, a panel of which issued a groundbreaking ruling this April backing transgender rights…
Since President Barack Obama came into office in 2009, he has shifted the alignment of several federal appeals courts to the left, resulting in nine of the 13 now having a majority of Democratic appointees.
That certainly doesn’t reflect the party breakdown of the country, which is not 70% Democratic/liberal. But the federal appeals courts are about 70% liberal-dominated, thanks to Obama.
That’s a president’s prerogative, of course; to reshape the judiciary if and when he/she gets the opportunity. And Obama, as a lawyer and a former con law teacher, is well aware of what he was doing and why. It has borne fruit, as we can see by the recent decision blocking Trump’s EO: both judges are recent Obama appointees, Watson of Hawaii in 2013, and Chueng of Maryland confirmed in 2014.
I’ve already written at some length about what I think of their decisions, so I’ll just say here that I find their legal reasoning not just poor but shocking in its reach. Although I sometimes think I have lost the capacity to be shocked by such things, apparently I retain it.
When I was in law school, many moons ago, the main occupation of the student was to read judgments which often consisted of a majority and a minority opinion, plus dissents. The student therefore was exposed to the reasoning and logic on both sides. Usually I agreed with a certain point of view, as did most students (not always the same point of view, of course). But almost always I read the opinions of judges espousing the opposite point of view and felt respect—sometimes a grudging respect, but a respect nevertheless—for the tightness of their arguments and the aptness of their citations.
That’s not how I feel about these most recent decisions on Trump’s EO, which are troubling in a host of ways, and I’m not referring to their outcomes when I say that. Judges often seem to come to their conclusions and then find the legal justification for them. But in these cases the legal justification is simply too flimsy to sustain the conclusions. The decisions constitute an extreme and dangerous case of judicial overreach (one I’ve also described elsewhere, so I won’t bother to go into the details now).
These judges and these decisions are Obama’s legacy, too. When he was issuing his executive orders as president, it was always known that his executive orders could be reversed by a subsequent president. Most people—and certainly Obama—thought that subsequent president would be Hillary Clinton. It’s not; it’s Donald Trump. But Obama’s hand reaches out through his judges to tie Trump’s hands, at least for now.
Note, for example, that the 4th Circuit—the one the Reuters article described in 2014 as having switched under Obama from being “one of the most conservative in the country” to being 10-5 Democratic—is the very court to which Trump will be appealing Judge Chuang of Maryland’s decision to block his travel ban.
Why is Trump not appealing (at the moment, anyway) the Hawaii decision? Because the federal appeals court there is the 9th, which is even more liberal than the 4th.
[NOTE: I highly recommend this article. Here’s an excerpt from it (and by the way, the authors do not appear to be the least bit pro-Trump or conservative):
Our point here is not that the district judges are clearly wrong. It’s merely that they are not clearly right—on a whole lot of points. And in the face of real legal uncertainty as to the propriety of their actions, they are being astonishingly aggressive. It is not, after all, a normal thing for a single district judge to enjoin the President of the United States nationally from enforcing an action that the President contends is a national security necessity, much less an action taken pursuant to a broad grant of power by the legislature in an area where strong deference to the political branches is a powerful norm. And it really isn’t a normal thing for multiple district judges to do so in quick succession—and, moreover, to do so in the face of substantial uncertainty as to the actual parameters of the constitutional and statutory law they are invoking and powerful arguments that they are exceeding their own authority.
“Substantial uncertainty” is an understatement.]