Commentary Magazine


Can Obama Pack the Courts With Liberals?

Every president’s most lasting legacy tends to be the judges they appoint to the federal courts. That’s why liberals are hoping that President Obama’s re-election will result in a wave of judicial nominations that will alter the character not just of the Supreme Court, but also of crucial appellate benches, such as that serving the District of Columbia. As the New York Times reports this morning, the confirmation of one of Obama’s nominees to be the eighth member of the United States Court of Appeals for DC has only whetted the appetites of his liberal base. With three vacancies still available to be filled, that gives the president the chance to not only significantly change a court that has in recent years acted as a check on the administration’s agenda. But that ambition is running head on into the determination of the Senate’s Republican minority to use the filibuster rules to prevent a radical shift to the left in the judiciary.

Considering that it was the Democrats who began this game of filibustering nominees to DC bench in 2001 when they frustrated George W. Bush’s nomination of Miguel Estrada, the cries of GOP obstructionism from the left are more than a little hypocritical. But according to the Times, the White House plans to try to shove the three down the Senate’s throat simultaneously so as to create a backlash against the Republicans. They are betting that GOP Leader Mitch McConnell can be influenced into backing down on this confirmation fight by making him believe the defeat of three liberals will lead not just to public anger but a push to change the rules of the Senate that would effectively neuter the rights of the minority. But while Democrats like Harry Reid and Chuck Schumer are speaking as if they have McConnell over a barrel, the GOP leader must know this is a transparent bluff.

The Democrats have been pushing the theme that Republicans are obstructing the president’s agenda ever since the 2010 elections with mixed success. While many assume that what the people want is for Congress to “get things done,” Americans have shown they are actually quite comfortable with divided government since when one party controls both ends of Pennsylvania Avenue, the result is not very popular, as the recent polls that show a majority continues to oppose ObamaCare — passed in 2010 during a period of total Democratic dominance — testifies.

However, the Republicans proposal on the future of the DC panel is probably just as doomed as the nominations of any of the liberals Obama might nominate. They want to eliminate the three vacancies on the DC panel — which already has eight members split between the two parties as well as six senior judges that are available to hear cases — and transfer them to other circuits. That makes sense since the judiciary does seem to be heavily weighted toward the capital but the problem there is that anyone who wants to change the rules about court nominations is inevitably going to face the charge of court packing.

But that applies just as easily to Democrats who are threatening the GOP with the “nuclear option” of altering the rules that permit filibusters.

It is true that the practice has escalated from isolated cases to a situation where almost everything that requires Senate passage requires a 60-vote supermajority in order to prevent a filibuster. That is regrettable but in a Senate where neither side trusts the other to give each other’s proposals a fair hearing, it’s inevitable. And as much as the need for cloture on all legislation is a burden on the government, there is an understanding in both parties that lifetime judicial nominations are the sort of thing where broad consensus is to be preferred over narrow partisan majorities.

Nor is there much reason to take the Democrats threats on this matter too seriously. The recent confirmation of Sri Sririvasan to the appellate court shows the Republicans are prepared to play ball and let enough Democratic nominees through to keep the system working. Indeed, they can argue that Obama’s judges are being confirmed more quickly than were George W. Bush’s picks when the Democrats controlled the Senate.

It’s also true that Democrats understand that the filibuster is a tool that both sides can employ. If 2014 turns out to be a big GOP year and with so many seats to protect, it is entirely possible that it will be Reid who will be doing the filibustering in 2014 rather than McConnell, making it unlikely that the Dems will ever change the rules.

In the meantime, Senate Republicans have every reason to use their power to slow down Obama’s attempt to tilt the courts to the left. Rather than seeking a confrontation that he and his party are bound to lose, President Obama would do well to consider candidates for the courts that can attract moderate and conservative support rather than ideological liberals. Nobody is fooled by the Democrats’ bluffing.

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