***Update*** On Monday night, 39 Republicans joined with the Democrats to confirm Filipe Restrepo to the Third Circuit Court of Appeals. This brings the total appellate judges appointed by Obama to 55.
We have a new unlawful executive action on immigration, a new unlawful executive action on guns, and a president spying on Congress. Obama is insisting on bringing in more refugees from the Middle East. He is staffing up for a potential release of up to 20,000 federal prisoners. We have a massive border surge and no visa tracking in place for all those who’ve overstayed their visas. We have a massive release of criminal aliens and suspension of deportations (except for the handful of theatric deportations for the media). And what is the first issue Senate Republicans plant to tackle? The first vote of 2016?
To confirm a liberal judge to the Third Circuit Court of Appeals.
Over the past few years, we’ve learned that the legislature, which was supposed to be the predominant branch of government, is really the feeblest branch. Whereas the Judiciary, which was supposed to have “neither force nor will” in major public policy questions, in the words of Alexander Hamilton, is now the supreme law of the land as it relates to all important societal issues. As such, until Republicans grow a spine and reassert congressional controls over the judiciary, they must ensure that not a single new Obama judge is appointed for the rest of his presidency.
Unfortunately, the very first vote Republicans plan to conduct in the Senate this year will be to confirm a liberal judge, Luis Felipe Restrepo, to the Third Circuit Court of Appeals.
The notion that Republicans would vote to confirm more Obama judges defies logic on so many levels. This is one of the few areas where they have no excuse or lack of power to actually use their control of the Senate for good purposes. Moreover, by confirming more Obama judges, they will not only further exacerbate the growing judicial time bomb of anti-constitutional case law, but will also prevent the next Republican president from filling those vacancies.
Obama has Remade the Bench
While most people focus exclusively on the Supreme Court and how that institution has reached rock bottom with some of the decisions of the past term, the situation in the lower courts is even worse. And remember, only 1% of this country’s cases ever make it to the land’s highest court. Obama has now appointed 54 active appeals court judges, which represents 30% of the appeals court benches.
As of 2016, nine of the 13 circuits are comprised of majorities of Democrat-appointees. In totality, there are 92 Democrat circuit judges, 77 GOP judges, and 10 vacant seats. The all-important D.C. Court of Appeals—the second most important court in the land on constitutional issues—is now 7-4 majority Democrat-appointees, with four judges appointed by Obama alone.
Here is the partisan breakdown of the federal circuits and number of Obama appointees sitting on each bench.
On the district level, Obama has now appointed 260 judges, 39% of the federal district bench.
Moreover, as anyone who understands the legal profession knows, Democrats have a perfect record of appointing judges who believe the Constitution is unconstitutional. Republicans, on the other hand, have appointed a number of lousy judges, and because there is less scrutiny of the lower courts, there are even more Anthony Kennedy types on the circuit benches than those in the mold of Clarence Thomas. We see this evident in a number of Republican judges choosing to uphold unconstitutional gun laws, the unconstitutional individual healthcare mandate, the unlawful federal subsidies for states without state healthcare exchanges and Obama’s anti-conscience abortion-coverage mandate, and to strike down constitutional marriage laws—just to name a few recent examples in high profile cases.
Consequently, there is a very small minority of originalist judges on the lower courts. This reality will only get worse as Obama’s radical judges begin churning out case law on critical issues that will create precedents that deviate even further from our Constitution, making it harder for future judges to overturn.
The Long Term Effects
So, if Obama is able to flip so many circuit courts over the tenure of his presidency, can’t the next Republican president undo all the damage by appointing constitutionalists?
In theory? Yes. In practice? Unlikely.
First, it would require a conservative president committed to countering Obama’s perfect record of 100% success in appointing anti-constitutionalists with his or her own 100% success rate of appointing only originalists. That is something that has never happened, so even in the best case scenario, Democrats come out ahead.
More specifically, if you look at the partisan orientation of each circuit court juxtaposed to the age of each judge, it is clear that there aren’t too many opportunities to flip the balance of individual circuits in the near future. Obviously it’s hard to predict how many judges will die or retire in the next five or so years, but the few opportunities that Republicans have to flip Democrat seats appear to be on the few circuits where they already have a solid majority or where Democrats already have an impervious partisan or ideological majority.
In general, most of the oldest judges who are likely to retire are those appointed by Reagan and George H. W. Bush. For example, even though Republicans officially have a 6-3 majority on the 7th Circuit bench, all four of the members over the age of 75 are Republican-appointees (although several of them are quasi progressives).
Furthermore, a number of the inactive (senior) judges, most of whom are GOP-appointees, who occasionally sit in on the circuit panel, will likely retire or die in the coming years.
Accordingly, that Republicans would willingly use their Senate majority to confirm more Obama judges instead of affording a Republican president every opportunity to reshape the benches defies logic.
Where Things Stand
Senate Republicans plan, as their first act of 2016, to confirm Luis Felipe Restrepo to the Third Circuit Court of Appeals on Monday. It goes without saying that they should not confirm another appointee for the rest of Obama’s presidency. But even district court judges matter. As we saw this year from Judge Andrew Hanen of the Southern District of Texas, when he wrote a masterful opinion striking down Obama’s DAPA amnesty, district judges can make a compelling case in either direction to set the tone on a given constitutional issue as it winds its ways to appeals.
Moreover, by easily confirming radical lawyers to district judgeships, often by unanimous consent, it will make it harder to block their future promotions when vacancies occur on the appellate level. Restrepo is now sailing through confirmation because he was confirmed by the Senate via voice vote to a district judgeship just two years ago.
From what I can gather, there are 12 district judge nominees that have already passed out of Judiciary Committee and another 12 pending before the committee. There is absolutely no reason they should be confirmed. Every new confirmation will place more anti-constitutionalists in the pipeline for appellate court positions and prevent the next president from nominating originalists to those districts.
Now is the time for Chuck Grassley, the Chairman of the Senate Judiciary Committee, to actually demonstrate that he indeed controls the panel and not Pat Leahy. It’s bad enough that he has turned the committee over to Obama on criminal justice and consistently brings in liberal witnesses at hearings. With Obama’s ubiquitous lawlessness across the spectrum of government, and in the Justice Department and DHS in particular, Grassley should be using every hour of committee time to expose Obama’s dangerous war on law enforcement in his final year. Should he divert any more time to helping Obama disenfranchise the people with judges who legislate from the bench he will be guilty of the ultimate betrayal.
If elections have consequences to the extent that Obama was able to remake the bench in his first six years with those who don’t believe in the law they swear to uphold, they also have consequences in that a GOP-controlled Senate can now shut it down.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.