The Importance of Keeping the Senate and the Obama Second Term Paradox

(PHOTO: From The Guardian - President Barack Obama and Senate Majority Leader Harry Reid sit in the Oval Office, October 2013).

Recent developments underscore how critical it is that Democrats continue to hold control of the U.S. Senate. As reported by Adam Serwer at MSNBC and by the Huffington Post, it is evident that filibuster reform has been an enormous boost to President Obama. Thanks to the threat of the filibuster being removed from most presidential appointments, Obama has been able to slowly remake the federal judiciary in a more progressive direction. "A majority of appointees on the federal district and circuit courts," Serwer writes, "are Democratic appointees." Further, the President's slate of nominees for the federal bench are the most diverse collection in history, racially, ethnically, socioeconomically, and in background, as many have a history of being involved in Public Defender offices. 

This power is hugely important as these federal judges decide crucial cases that influence American social policy and our understanding of constitutional law for decades, beyond the tenures of the presidents who appointed them. For instance, it was U.S. District Judge Robert M. Shelby, an Obama appointee, who ruled in Utah before last Christmas that same sex marriage ought to be legal in the state. That ruling set off a judicial firestorm and was naturally quickly appealed. A federal appeals court ruling this week reaffirmed Shelby's ruling and this decision may lead to a path that ends with the U.S. Supreme Court finally hearing a case on whether gays have a fundamental federal right to marriage. The President's recent EPA regulations regarding emissions from coal-fired power plants may survive the test of judicial scrutiny thanks to the fact that he was finally able to muster through the Senate his nominees for the D.C. Circuit Court, a very influential body that often hears cases regarding government rules and regulations, as a consequence of filibuster reform. These judges have a real impact on real lives and without a Democratic majority in the Senate for Obama's final two years in office, it will be extremely difficult to fill the vacant seats on the federal bench with progressively minded judges.

Further, another development this week demonstrates how critical it is to keep the Senate in Democratic hands. The Supreme Court unanimously ruled that President Obama overstepped his executive authority to make recess appointments when he appointed three nominees to the National Labor Relations Board (NLRB) during a Senate 'pro forma' session in January 2012. Though they could have been more aggressive in their ruling, the Court still somewhat restrained the presidential prerogative of recess appointments, at least from the viewpoint of the Justice Department. Now that filibuster reform has removed the filibuster as a possibility when it comes to presidential appointments, recess appointments have all but disappeared. Nevertheless, the ruling demonstrates that such recess appointments would be difficult to pull off in a Senate controlled by Republicans. The GOP Senate leaders would likely do everything in their power now to ensure that the Court decision is strictly enforced, including lessening recesses to a point at which it would become close to impossible for Obama to make any recess appointments would a Cabinet position be vacated. This would make it more likely that the White House would have to nominate individuals who are not very strong on key issues for progressives but would satisfy the GOP Senate leadership. 

Lastly, on a different note, it was telling that President Obama said this week in Minnesota that he just wants to "say what's on [his] mind" these days as he is freed from the burdens of running for another term. He's certainly done more of that these days, as reflected in his extensive interview with David Remnick in The New Yorker earlier this year, in his blunt comments on gun violence at a Tumblr-hosted event at the White House recently, and in his surprisingly candid remarks on Trayvon Martin and race in America last summer. At this stage, it appears that the President is attempting to carve out a positive legacy that reflects the values he campaigned on, and regardless of how the politics of such language plays out, it is certainly a welcomed development for many progressives. There seems to be an interesting paradox at play. As Obama's approval rating has dipped and issues surrounding the NSA, the ACA rollout, and troublesome events abroad damaged his popularity, he has, in the mean time, become considerably stronger and more progressive on several important policy matters that liberal activists have urged him to improve on and that he has cared about throughout his career. In his second term, Obama is noticeably more accomplished and robust on policy when it comes to climate change and gun safety reform, even stronger on gay rights, shrewder on Iran, and vastly superior on issues of race, the war on drugs, and reforming the criminal justice system, in no small part because of a reinvigorated Attorney General Eric Holder. This may help explain why, despite an overall lower approval for Obama in his second term thus far, the President has held steady among Democratic voters, especially liberal Democrats, who give Obama a resoundingly high approval rating in the mid-80s. Most importantly though, his improvement on these issues in his second term is in the long term better for the country as we finally begin to seriously tackle the menace of global warming, prevent Iran from obtaining a nuclear weapon, tackle inequalities in criminal justice, and continually expand the rights of LGBT Americans. Given his track record recently on these issues, combined with his impressive first term litany of legislative achievements that are already making a difference such as the Affordable Care Act and the creation of the CFPB as part of Dodd-Frank, Barack Obama is bound to be regarded as one of the more activist Democratic presidents. At the moment, the politics do not look rosy for him or his party but slowly but surely, he's leaving an impressive mark on the country.