MARK KARLIN, EDITOR OF BUZZFLASH AT TRUTHOUT
Ever since I founded BuzzFlash in 2000, I have written occasional commentaries on how the Republicans are equally tenacious in appointing right-wing federal judges when they control the Senate process as they are in opposing liberal or moderate nominees when there is a Democratic president.
One can point to the nixing of the Merrick Garland appointment to the Supreme Court (SCOTUS) under Obama as an example of GOP obstructionism. With Mitch McConnell as the coordinator of the effort, no hearings were even held on Garland and only a few courtesy calls with a few Republican senators were allowed. Garland, Chief United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, is regarded as a moderate and respected by the likes of arch-conservative Orrin Hatch.
However, the Democrats did not shine a spotlight on the unfairness of the Republicans, which led to what would have been Garland's seat going to ultra-right-wing jurist Neil Gorsuch, who was fast-tracked to the SCOTUS in the first months of the Trump administration.
As Nina Totenberg of NPR observed about Gorsuch in a July 1 article:
But Justice Gorsuch seems both sure-footed and sure of himself and his views. Though he was confirmed in time to hear only the final two weeks of the term's oral arguments, his votes and opinions in those cases -- and others that the court has disposed of since he was sworn in -- paint a vivid picture of a justice on the far right of the current Supreme Court bench.
Indeed, he voted 100 percent of the time with the court's most conservative member, Clarence Thomas, according to SCOTUSblog.
Over the past few decades, Republicans have demonstrated that they understand the long-term implications of creating an activist federal judiciary and using every trick in the book and sheer power plays to confirm right-wing nominees. Meanwhile, the Democrats appear to generally be content to play by the Senate rules and not put a full-court press on getting Democratic presidential nominees placed on the various levels of the federal bench. In this sense, Gorsuch is just the tip of the pyramid. Progressives are mostly ignoring all the federal judges confirmed by the GOP at other levels -- to great peril.
Jeffrey Toobin, legal analyst for The New Yorker, wrote yesterday of the GOP's high-intensity push to get its federal appointees seated -- as compared to the Democratic senators when they are responsible for federal court nominees:
Trump has also benefitted from the greater interest that conservatives, as compared with liberals, have shown in federal judicial appointments at all levels. Republicans simply care more than Democrats do about getting their people on to the bench. Illustrating the varying priorities of the two parties, Allan Smith, of Business Insider, compared the first six months of judicial appointments under Obama and Trump. Smith found that, in this period, Trump nominated eighteen people for district-judgeship vacancies, and fourteen for circuit courts and the Court of Federal Claims. During that same period in Obama's first term, he nominated just four district judges and five appeals-court judges. In total, when U.S. Attorneys are included, Trump nominated fifty-five people, and Obama just twenty-two. Obama’s attention was, undoubtedly, distracted by a global economic implosion in 2009, but his party had a greater majority in the Senate than Trump’s does now, and still Obama failed to push through more than a handful of judges in that period.
The last sentence of that paragraph speaks volumes.
Toobin also notes an ancillary development in relation to the Republicans stonewalling and shunning Garland to replace Scalia's seat on the Supreme Court:
McConnell didn’t just protect a Supreme Court seat for the next President; he basically shut down the entire confirmation process for all of Obama’s federal-judgeship nominees for more than a year. It’s the vacancies that accumulated during this time—more than a hundred of them—that Trump’s team is now working efficiently to fill.
McConnell and the GOP know that the majority of cases tried in federal courts happen at the district and appellate levels, with only a relatively few cases reaching SCOTUS for consideration. Thus, while the chaotic and shock tweets and actions of Trump gin up the interest of the mainstream corporate media, the Republicans are packing the federal benches with Trump-nominated zealots.
Amid the circus of the Trump administration, the confirmations receive little notice in the mass press. However, their implications for the long haul -- particularly since many of the nominees are young and these are lifetime appointments -- are profound for establishing conservative legal decisions as precedents.