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“Elections Have Consequences”

Senator Charles Schumer (D-NY) was out on Twitter on Wednesday complaining that the Trump administration and Senate Majority Leader, Mitch McConnell (R-KY), are “packing the courts with right-wing ideologues who they know will do their bidding.”

Schumer was referring to a report, “Captured Courts,” published by the Democratic Policy and Communications Committee, which is chaired by Senator Debbie Stabenow (D-MI).  The report complains about the Trump administration’s appointment of judges who, according to the report, are not so much judges as partisans for the Republicans.  The DPCC report complains that the so called “Roberts Five,” referencing the current five Republican appointees to the Supreme Court, have “abandoned traditionally ‘conservative’ principles like judicial restraint, respect for precedent, and even ‘originalism.’”

The report suggests that, “From the Supreme Court on down, the special interests responsible for these judges’ selection and confirmation are effectively capturing the judicial branch, packing our courts with politicians in robes,” who do the bidding of special interests on the right.  Ahem, I am old enough to remember when Roberts, whom the DPCC has pegged as the ringleader of the conservative majority on the Court, cast the deciding vote and wrote the opinion which allowed Obamacare to stand, much to the dismay of conservatives far and wide.

According to a report on FoxNews.com by Fox political correspondent, Tyler Olson, “At this point in his first term, Trump and the Republican Senate have confirmed more than 190 judges to federal Article III courts overall – second only to Jimmy Carter – and 51 judges to the U.S. Courts of Appeals — one more than Carter and 16 more than the next-most successful president, George H.W. Bush.”

In the eight years that he occupied the Oval Office, Obama made over 300 appointments to Article III courts which were confirmed by the Senate, two of which were to the Supreme Court, those being Sonia Sotomayor and Elena Kagan, and both of them in his first term.  In fact, then Senate Majority Leader Harry Reid, Democrat from Nevada, famously, or infamously, pushed through a new Senate Rule in 2013 which prevented filibustering of judicial appointments other than for the Supreme Court. McConnell urged caution at the time. I wonder if Schumer regrets his vote in favor of changing that rule now.

One does not have to look too far back to see why Trump and the Senate Republicans are dedicated to filling every vacancy in the federal judiciary.  The Ninth Circuit U.S. Court of Appeals, based in San Francisco, and well known in the past for its liberal leanings, issued an opinion on May 22, 2020, upholding by a 2-1 vote California Governor Gavin Newsome’s Executive Order which mandated that churches remain closed.  It was not so much a surprise to court watchers that the appellate panel ruled the way it did, but rather it was the language used by Clinton appointee, Judge Barry Silverman, who wrote the opinion with which Obama appointee, Judge Jacqueline Nguyen concurred.

“We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure,” Silverman wrote. “In the words of Justice Robert Jackson, if a ‘[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’”  If they were here today, I suspect that the Founders would be surprised that the Constitution has been reduced to “doctrinaire logic” and a “suicide pact.”  To his credit, the dissenter, Judge Daniel Collins, a Trump appointee, recognized the clear application of the First Amendment to the South Bay United Pentecostal Church’s right to reopen and wrote an 18 page dissenting opinion to explain why the majority had erred.

When he gets a few minutes, Schumer should give his good friend Barack Obama a call and ask him why Trump, McConnell and the Senate GOP are doing their best to appoint as many judges as they can to the federal bench.  Although I do not presume to know what the former president would tell Schumer as he tried to console him, I’ll wager that at some point in the conversation, the former president will tell Schumer that “elections have consequences.”

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