Barack Obama’s liberal views regarding the judiciary are no secret. He fully expects judges to be more than impartial arbiters of the law: They should bring their own independent opinions to bear on the cases before them. Obama infamously remarked in July 2007 that he would appoint judges who have "the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old."

Those who seek to be neutral and unbiased need not apply. Only do-gooders who are willing to disregard the law in favor of the little guy, please! Many commentators have rightfully noted that the next four to eight years, with Obama in office, will be disastrous for the federal judiciary.

But what about the next six to twelve years?

Thirty-two class II U.S. Senators were elected last year (with Minnesota’s race still undecided and a few of those seats subject to special elections in 2010). Of these senators, seven Democrats and two Republicans are newly elected "freshmen." Class II senators will not be up for re-election until 2014. Any senator surviving the 2014 election will remain in office until January 2021—four years longer than Obama could possibly hope to remain in the White House. And that is to say nothing about the possibility of a third or fourth re-election campaign.

Each of these senators has the duty of "Advice and Consent" in judicial nominations. Yet their elections occurred with barely any discussion about the judiciary. To the degree that judicial nominations were discussed in reference to these senators, the discussion was primarily about an important, but shorter term issue: Whether Obama has a "filibuster-proof" Senate during 2009-10 (an issue that could become moot with Arlen Specter’s recent, self-serving switch from Republican to Democrat).

Some of this year’s freshmen are more than officials with a "D" behind their name who might be inclined to support a president of the same party. Some have independent reasons to themselves promote and confirm liberal, activist jurists. How unfortunate. Senators are given extraordinary latitude to recommend jurists from their own states. Moreover, the use of blue slips and other procedural mechanisms helps them influence the quality of confirmed judges.

Two freshmen senators will impact the dynamics of their circuit sooner, rather than later. The U.S. Court of Appeals for the Fourth Circuit has four vacancies. At least two of these vacancies should go to North Carolina and Virginia, home to Senators Mark Warner (D-VA) and Kay Hagan (D-NC).

Unfortunately, both senators have given indications that they could be too results-oriented when it comes to judicial selection. Warner claims that he has no "single litmus test issue" for judges. A judge’s views on Roe v. Wade should not be dispositive, but it "would be part of the consideration," he explains. Or would it be more? He has also noted that "my reading of the constitution is that there is a right to privacy, and I would look at the potential judge’s or justice’s overall record." For her part, Hagan has been a bit more straightforward, affirming that she will pay particular attention to a candidate’s record on privacy rights. When asked during a senatorial debate if Roe v. Wade should stand, she simply answered: "Yes."

Another freshman senator is less shy in admitting his dedication to promoting liberal activist jurists. Jeff Merkley (D-OR) declared during his senatorial campaign that he would have voted against the confirmation of Chief Justice John Roberts. A "nay" vote would have put Merkley in the minority of 22 liberal senators who ignored Roberts’s irrefutable qualifications for the job. Merkley has repeatedly expressed his support for Roe v. Wade, in which the Court affirmed that privacy rights are found in the "penumbras" of the Constitution. He has mourned the fact that "protection for Roe is very tenuous among the justices on the Supreme Court," and he has promised to be a "senator who will always, always protect a woman’s right to choose."

Merkley represents a state in the notoriously left-leaning Ninth Circuit. Maybe the harm that he can do will be somewhat minimized. But six to twelve years in office could give Merkley the opportunity to make recommendations for the two appellate seats currently based in his state—one of which is held by a conservative Reagan appointee who turned 72 earlier this year.

Other new senators in the Ninth Circuit are Mark Begich (D-AK) and Jim Risch (R-ID). Begich is a virtual unknown, a former mayor and an underdog whose victory may owe more to the prosecution of then-incumbent Senator Ted Stevens than to any other factor. Risch is a former governor with a reputation as a conservative. He emphasizes that he is "looking for a judge who’s not a social activist." He concludes that "the judicial system is clearly, as the non-elected branch of government, way too involved in policy and legislating."

Freshmen senators in other circuits are unlikely to have an immediate impact on the appellate courts in their circuits due to a lack of vacancies (either in the circuit or in their own state). But six to twelve years is a long time for vacancies to arise. And the senators will impact the selection of district court judges in the interim.

Two cousins have been newly elected to serve states in the Tenth Circuit: Mark Udall (D-CO) and Tom Udall (D-NM). Of the two, Mark Udall has been more outspoken on the matter of judicial nominations. Even as a congressman without a vote on the matter, he inserted himself into the failed nominations of Christine Arguello (for the 10th Circuit) and Harriet Miers (for the Supreme Court). He issued a statement announcing his support for the nomination of Chief Justice John Roberts, albeit explicitly noting that he "would not give Judge Roberts a ringing endorsement."

As a Senate candidate, Mark Udall emphasized his desire to "encourage the nomination and confirmation of mainstream judges and to keep the process from getting bogged down in partisan politics on either side of the aisle." He named "two quintessential Western members of the Supreme Court" as his models for a good justice: Sandra Day O’Connor and Byron White. "They were moderates," he explained. "One was a Republican in her public life. The other was a Democrat. But they both brought to the bench experience, a judicial temperament, a willingness to look at the broader world." Despite his flowery words about bipartisanship, Udall’s conclusion reminds us that his judges won’t look to the law. They will look to their personal, subjective views of the world to decide cases before them.

Across the country, New Hampshire replaced one of its Republican senators with a Democrat, Jeanne Shaheen, who makes no secret of her views. Her website proudly declares her litmus test for any judicial appointee: "Shaheen will vote to confirm justices to the Supreme Court who will uphold the right to privacy enshrined in our constitution." Elsewhere, she has explicitly stated that she "will oppose any judges who seek to overturn Roe v. Wade." Shaheen’s views are at odds with those of the remaining freshmen senator, Mike Johanns (R-NE). During his campaign, Johanns blasted the judge that invalidated Nebraska’s partial birth abortion law. "Judges must fairly interpret the law," he concluded, "not use a liberal bias to make a political statement, or pursue an activist agenda."

Obama unfortunately appears to have plenty of people to aid and abet him in his intentions to take the courts in a significantly more liberal and activist direction. The impact on the judiciary could be devastating, given the number of appointments he can make within relatively short order. Last year’s Democratic Senate deliberately refused to confirm many of George Bush’s nominees, leaving many vacancies on the lower courts for Obama to fill. Moreover, six of nine Supreme Court justices are over the age of 70. One of these justices is unfortunately very ill.

Unfortunately, the problem is harder to resolve than a presidential election in four to eight years. Even if Obama’s successor supports a less activist judicial philosophy, many of these new senators (and some of the old ones!) could seriously undermine that president’s attempts to nominate good judges for years to come.