Sen. Pat Toomey (R-PA) is facing a tough reelection this year. He is running for a second term and must win statewide in Pennsylvania during a presidential year when there is typically higher Democratic turnout in Philadelphia. However, rather than harness the anti-Obama sentiments sweeping the nation and learning from the election results that he must promote our sovereignty, security, and civil society, Toomey thinks his road to reelection can be paved by confirming Obama judges.
As we noted earlier this month, some senators have actually worked hard and put their reputations on the line to block Obama’s post-constitutionalist judges. Senator Perdue, for example, blocked a nominee from his own home state, even though he was called a racist for doing so. Toomey has taken the opposite tact. He has pressured his leadership and other members to confirm Obama’s judges. The very first Senate vote of 2016 was to confirm Felipe Restrepo, a liberal judge from Pennsylvania, to the Third Circuit Court of Appeals. What is so disconcerting is that, for once, Mitch McConnell actually wants to hold the line and not confirm more Obama judges; yet Toomey, with his broken political barometer, is pulling the conference to the left.
Last Friday, Senator Toomey took his push for Obama judges to a new level. He sent a letter to his colleagues urging Chuck Grassley, chairman of the Senate Judiciary Committee, to confirm two more Pennsylvania judges to federal district judgeships. In a letter full of technocratic language, Toomey extols the nominees’ legal careers and notes they are “well qualified” according to the American Bar Association.
This is part of a broader problematic view people like Toomey have espoused concerning judicial nominations. In 2010, while running for Senate, Toomey penned an op-ed in the Philadelphia Inquirer urging Republicans to confirm Sonia Sotomayor to the Supreme Court. He noted that while he would likely disagree with some of her rulings, she is “an extremely capable and qualified jurist.” Toomey should be asked if he still believes this in light of Sotomayor’s five years on the court redefining every aspect of the Constitution and rewriting statutes. Evidently, redefining marriage — the building block of all civilization — from the bench qualifies her as a jurist.
What Toomey fails to understand is that while it is nice for someone to come highly recommended and have an impressive legal career, if that nominee doesn’t A) believe in the proper role of the judiciary and B) believe in the Constitution as it was written and adopted at the time of ratification, he or she is not qualified to serve on a federal bench. There is no wiggle room. This is not a political position; this is a position designed to interpret laws and the Constitution as written. That is why judges are not elected and serve lifetime tenures.
Which brings us back to the two judges Toomey wants confirmed: Robert Colville and John Younge. For once, Chairman Grassley, who has been exceedingly weak on the committee, is actually doing the right thing by bottling up these nominees. These two nominees believe that Roe v. Wade is “settled law.” In other words, they believe that the Constitution is unconstitutional and that every new concocted right that courts have backfilled into the 14th Amendment over the past half century is settled law. That is unacceptable. It is nothing more than conducting a constitutional convention from the bench. Younge also sought support from Planned Parenthood while running for a local office in Pennsylvania.
Senator Toomey feels that he is doing us a service by working out a bipartisan framework with his colleague, Sen. Bob Casey (D-PA), to confirm judges from both sides of the spectrum if they are “qualified.” The problem is that this credulous mentality reflects the very reason we have an imbalance on the courts in the first place. Democrats have reached an irretrievable level of partisanship and will automatically block any solid originalist judge. Agreeing to confirm their judges, promises from Bob Casey notwithstanding, will do nothing to stop Democrats from blocking our court picks. It’s like saying if we stop waterboarding terrorists at Guantanamo Bay, the terrorists will be nicer to us. Democrats will use tactics of political terrorists, stopping at nothing to achieve their goals. Remember Robert Bork and Clarence Thomas? They have already maxed out in their intensity of opposition to the Constitution. Confirming Democratic judges will not weaken their resolve to fight a conservative president on the judiciary.
Moreover, we will never win the judiciary game. Even most GOP appointees will respect the post-constitutional precedent and bastardization of the 14th Amendment. Rather than confirming liberal judges based on some naive hope of confirming some phantom originalist judges, Toomey would be wise in joining us to promote judicial reform and restore the legislative powers over political questions to the legislative branch of government.
Finally, by confirming additional lower court judges, Republicans will lend credence to Obama’s assumption that he is entitled to get more confirmations, even with the GOP-controlled Senate. This will weaken their argument against blocking the coming Supreme Court nominee.
Unfortunately, if Senator Toomey continues promoting Obama’s agenda instead of going on offense, he might not have to worry about his agreement with Senator Casey next year.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.