The
Democrats, and Sen. Chuck Schumer in particular, have engaged
in an outrageous set of practices from 1993 to 2017 that have allowed them to
steal huge majorities on all the federal circuit courts of appeals. This
story needs telling because Senate Republicans, while performing very admirably
in replacing Justice Scalia with Justice Gorsuch, have had their pockets picked
with the courts of appeals.
Federal
courts of appeals decide over 60,000 cases a year while
the Supreme Court decides only 80.
We could have a Supreme Court of nine Justices Gorsuch and still lose
59,020 cases a year. That is a pretty bad situation for Republicans in
the judiciary. Moreover, the current imbalance has occurred almost
entirely because of the bad-faith dealing of Sen. Chuck Schumer, who has
outwitted Republicans at every turn.
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Bill Clinton served as president from
1993 to 2001; he made two Supreme Court
appointments, 66 judges to the federal courts of appeals, and 307 judges to the
federal district courts. For the last six years of Clinton’s presidency
the Senate was controlled by Republicans and confirmed almost all his judges
without filibustering any of them. Forty-six Clinton nominees were
confirmed to the crucial courts of appeals by the Republican Senate between
1995 and 2001.
In
2001, George W. Bush was elected president, and he made two Supreme
Court appointments. He appointed 62 federal Court of Appeals judges, four
fewer than Clinton, and 261 federal trial judges, 46 fewer than Clinton.
Democrats, at Chuck Schumer’s urging, refusing to confirm initially some
of the brightest and most conservative Bush judicial nominees such
as Michael McConnell, Bill Pryor, Priscilla Owens, and Janice Rogers Brown.
Bill
Pryor’s treatment is indicative of Democratic behavior during the younger
Bush’s presidency. Pryor was nominated to the 11th Circuit Court of
Appeals on April 9, 2003. A Republican Senate was
unable to confirm him until June 9th , 2005 —
two years later.
Because
there had never been a filibuster of a lower court judge ever before in
American history, Senate Republicans prepared to endorse the nuclear option to
amend the Senate rules forbidding filibusters of judges. A gang of 14 senators then got together to
save the filibuster of judges for a real emergency and in exchange Senate
Democrats let Pryor, Priscilla Owens, and Janice Rogers Brown get confirmed.
They then promptly resumed filibustering Bush’s judicial nominees.
What
these filibusters meant in practice were that, with a few exceptions, the only
Republicans who Bush could appoint to the federal courts of appeals were judges
like George H.W. Bush-appointee David Souter and Ronald Reagan-appointees
Sandra Day O’Connor and Anthony Kennedy. These weak-kneed Republicans
frequently caved when they sat on panels that included bright, ideologically
committed liberals put on the bench by Bill Clinton with the help of a
Republican Senate.
After
the Democrats regained control of the Senate in 2006 they confirmed only eight Bush Court of
Appeals nominees in 2007 and only two in 2008.
Peter Keisler, for
example, who would later serve as acting attorney general of the United States,
a post in which he did a superb job, was nominated to the Court of Appeals for
the District of Columbia Circuit on June 29, 2006 for the seat that had been
held by Chief Justice John Roberts. On August 1, 2006, he received a
hearing before the Senate Judiciary Committee, but the Senate never acted on
the nomination. Keisler was re-nominated to the D.C. Circuit on January
9, 2007, but the Judiciary Committee refused to act on his nomination for two
years, mainly because Keisler had clerked for Judge Robert Bork.
President
Obama was elected in 2008, and he also appointed two Supreme Court justices.
He appointed 55 judges
to the federal Courts of Appeals and 268 to the federal District Courts.
Senate Republicans filibustered some
of Obama’s judicial nominees, and as a result the Democrats, who controlled the
Senate in 2013 abolished the filibuster of lower court judges and of executive
branch nominees. Obama proceeded to appoint very ideological left wing judges
to the Courts of Appeals where they were ineffectually opposed by the
Republican Souter-O’Connor-Kennedy judges who Senate Democrats had “allowed” to
get 60 votes during the George W. Bush presidency.
The
Senate has in six months confirmed only four Trump nominees, one of whom is
Justice Neil Gorsuch who sits on the Supreme Court. The Trump
administration has many pending judicial nominees that it has sent to the
Senate, but Senate Republicans are not even bothering to hold hearings on them
and confirm them even though they are well on their way to losing their
majority in the 2018 midterm elections notwithstanding a very favorable
judicial map.
Senate
Majority Leader Mitch McConnell simply has to pick up the
pace on confirmations. Otherwise, we will continue to lose cases we
should win, like President Trump’s travel ban in the lower federal courts.
Moreover, many if not all the deregulatory efforts that President Trump is
making will also be overturned in the Obama-Clinton dominated lower courts.
There is a huge amount at stake here for Senate Republicans and not a
minute to waste.
Steven
G. Calabresi is the Clayton J. and Henry R. Barber professor of law at
Northwestern University. Mr. Calabresi served as a law clerk to Justice Antonin
Scalia of the United States Supreme Court, and he also clerked for U.S. Court
of Appeals Judges Robert H. Bork and Ralph K. Winter.
http://thehill.com/blogs/pundits-blog/the-judiciary/343181-opinion-how-democrats-stole-the-nations-lower-federal-courts
