How Liberal Judges Took Control of 70% of US Appeals Courts, by Phillip
Wegmann, 9/4/16
On the campaign trail in 2008,
Barack Obama promised to fundamentally transform the United States of America.
After nearly eight years as president, he has delivered on one front by
reshaping the federal judiciary. That revolution has been comprehensive,
dramatic, and under the radar.
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.”
(Chart: Kelsey Lucas / Visualsey for
The Daily Signal)
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.
Obama didn’t push federal courts to
the left by himself, though, since the Senate must confirm a president’s
judicial appointments. And some conservatives complain that Senate Republicans
handed over the keys to the judiciary without a fight.
“These nominees can’t be
characterized as anything but radical liberals, and the senators knew that when
they were voting,” said Ken Cuccinelli, a former attorney general of Virginia
who is now president of the Senate Conservatives Fund, a political action
committee.
While there’s “no singular
explanation” for how the majority of federal appeals judges flipped, Cuccinelli
told The Daily Signal, Senate Republicans have adopted a strategy of “knee-jerk
surrender” on nominees.
Republican leadership balks at that
characterization, arguing that they’ve spent most of their time engaging in
guerilla-style campaigns against an entrenched, determined Democrat majority.
“A Democrat president has been in
office for eight years, most of that with a Democrat Senate, including several
years of a filibuster-proof Democratic majority,” a spokesman for Majority
Leader Mitch McConnell told The Daily Signal.
While Republican opposition to
Obama’s Supreme Court nominee, Merrick Garland, has remained consistent in the
Senate, the strategy for appeals court nominees has fluctuated. Liberals
describe it as aggressive, but conservatives belittle it as reserved. There’s a
decent case to be made for both interpretations.
A Republican minority in the Senate
filibustered for months in 2013 to keep three Obama nominees—Patricia Ann
Millett, Cornelia Pillard, and Robert Leon Wilkins—off the U.S. Court of
Appeals for the District of Columbia.
The Senate eventually
confirmed all three by narrow margins. But the GOP’s opposition
was so stiff that, to overcome it, then-Majority Leader Harry Reid triggered a
dramatic rule change known as “the nuclear option.”
To overcome Republican opposition at
the time, under the Democrats’ new rules federal judicial nominees can advance
to a confirmation vote with the support of a simple majority of senators and
without the threat of a filibuster.
As a result, if a party holds the
White House and a Senate majority, the president’s nominees are almost
guaranteed confirmation.
But Republican antagonism to Obama’s
nominees has not been constant.
While in the minority, Republicans
often mounted little to no opposition to Obama’s court of appeals nominees. And
since winning the Senate majority in the 2014 elections,
Republicans have rubber-stamped two
appeals justices, Kara Stoll for the Federal Circuit and Luis Restrepo for the
3rd Circuit.
As a result, Obama has fleshed out
the judicial roster on the U.S. Court of Appeals, successfully appointing 55 of
the 179 judges with little opposition.
Seven more of Obama’s appeals court
nominees await consideration in the Senate. With a compressed congressional
calendar and Election Day on Nov. 8, however, more confirmations before Obama
leaves office seem unlikely.
The ideological makeup of the
appeals court has more to do with justices retiring and dying off—“the natural
process of attrition”—than politics, said Carrie Severino, chief counsel for
Judicial Crisis Network, a conservative legal group.
“Obama was just very aggressive in
getting those spots filled,” Severino told The Daily Signal. “And it’s paid off
for him, especially on the D.C. Circuit Court [of Appeals], where there have
been some really important cases that have come through.”
A conservative stronghold under
President George W. Bush, Severino said, the U.S. Court of Appeals for the 4th
Circuit, which presides over West Virginia, Virginia, North Carolina, and South
Carolina—“is now on the cutting edge of liberal activism.”
In April, that appeals court ruled
2-1 in favor of a transgender student’s right to use the boys’ restrooms and
showers in public school. Two Obama appointees, Judges Henry Franklin Floyd and
Andre Davis, outvoted Ronald Reagan appointee Paul Niemeyer.
The Senate had confirmed both
overwhelmingly and without significant Republican hindrance—Davis in 2009 by a
vote of 72-16 and Floyd in 2011 by a vote of 96-0.
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.”
>>>
Read More: “Supreme Consequences: How a
President’s Bad Juidicial Appointments Threaten Your Liberty”
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