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It’s not just the Supreme Court we should worry about

Posted by Richard on September 10, 2016

For many pro-freedom folks, the strongest argument for voting for a deeply flawed GOP presidential candidate revolves around the Supreme Court. Donald Trump released a list of potential Supreme Court appointees a while back, a list strongly influenced by the Federalist Society and widely praised by conservatives and libertarians. Of course, there’s no guarantee that he’d stick to that list (although he’s promised to nominate people like those on the list). But it’s a virtual certainty that Hillary Clinton would nominate candidates like Breyer, Ginsburg, Kagan, and Sotomayor, if not worse.

But the Supreme Court isn’t the only judicial issue of concern. The Heritage Society points out that President Obama has fundamentally transformed the federal judiciary:

When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent.

Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.

“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Texas Supreme Court Justice Don Willett said, “while the 13 federal courts of appeals handle about 35,000.”

More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. “That’s a legacy with a capital L.”

Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges—seven more than President George W. Bush.

All those appointments were of course confirmed by the Senate. The GOP establishment and its critics disagree about whether Senate Republicans did the best they could or “handed over the keys to the judiciary without a fight,” and the Heritage article fairly presents both sides. Personally, I think the critics have the stronger argument. That’s not just water under the bridge; it gives us an idea of what to expect if Hillary Clinton is elected.

The next president could tip the balance of the four remaining circuit courts of appeals still dominated by conservatives.

“It’s hands down the most fateful issue of the election,” said Willett, who is on Republicans’ short list for the Supreme Court.

“When Americans vote in November, they’re choosing not just a president but thousands of presidential appointees, including hundreds of life-tenured judges.”

In 2013, Sen. Harry Reid invoked the “nuclear option” for all appointments other than to the Supreme Court, ensuring that a simple majority could end debate (quash a filibuster) and vote to confirm. This precedent will cut both ways going forward.

If Clinton is elected and the Democrats retake the Senate, anyone she nominates to the federal bench is, barring a scandalous revelation, certain to be confirmed. Even if Republicans retain the Senate (I think they probably will, but wouldn’t bet on it), history suggests that most of her nominees would be confirmed. There are several Republican senators who will will not oppose a Democratic president’s nominally qualified nominee based on ideology (unless the nominee is an avowed Stalinist, and maybe not even then).

If Trump is elected and the Democrats retake the Senate, I suspect the self-described deal-maker would nominate judges and justices who could get enough Democrat votes to be confirmed, perhaps people like Souter and Roberts. But I consider this scenario highly unlikely. Given the tepid support for Trump among the GOP base, I can’t imagine him being elected, but the GOP losing the Senate.

So the election of Trump would almost certainly be accompanied by the election of a Republican majority Senate. The nuclear option would then ensure that his lower court appointments could be confirmed, and he’d have every reason to nominate judges acceptable to the conservative base and no reason not to. In just four years, that could easily mean 25 or more circuit court and 100 or more district court appointments.

The Reid precedent doesn’t cover Supreme Court nominations, so that’s a different story. Senate Republicans could tell their Democrat colleagues “you started this, we’re going to finish it” and extend the nuclear option to cover Supreme Court nominations. But I can’t see Mitch McConnell doing that; it would require new leadership with a stiff spine.

The more likely scenario is, again, the nomination of people like Souter and Roberts in order to attract enough Democrat votes to invoke cloture (Roberts was confirmed on a 78-22 vote, with fully half of Senate Democrats voting for him). That’s not something I’d cheer, but it would be far better than two to four more Breyers or Kagans. So maybe a sigh of relief.

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