judicial vacancies

Right Wing Groups Play Games with the Courts, Try to Block Judicial Nominees

As GOP delay-tactics in the US Senate continue to cause and aggravate judicial emergencies in the nation’s courtrooms, right wing activists demand that Senate Republicans persist in preventing members from voting to confirm Obama’s judicial nominees, even those who won significant bipartisan support. Even former Republican judges have condemned Republican games in the Senate as the number of judicial vacancies and emergencies rapidly grow.

But right wing activists are calling on the Senate GOP to stand firm and further weaken the judicial system. In the effort to paint President Obama as the second coming of who else but Jimmy Carter, Eagle Forum’s Phyllis Schlafly blasted Obama’s purportedly “radical” nominees:

One of the greatest risks of the current lame-duck Congress is the possibility of Senate confirmation of President Obama's radical appointments to federal courts, boards and agencies.

Nominees hoping for confirmation include the radical redistributionist Goodwin Liu, who is seeking a spot on the Ninth Circuit; Louis Butler Jr., who was removed from the Wisconsin Supreme Court by the voters in 2008, and Chai Feldblum, an advocate of same-sex marriage and polygamy who is now enjoying a recess appointment to the Equal Employment Opportunity Commission.

Appointees to federal circuit and district courts can be almost as important as Supreme Court justices because the Supreme Court takes only about 1% of the cases that seek to reach the high court. Lower federal court judges have been making final rulings on dozens of controversial issues that should be legislative decisions, including marriage, parents' rights in public schools and immigration.

Some have lamented that Jimmy Carter, who served only one term as president, didn't get a chance to make any Supreme Court appointments. But don't cry for Carter — he had plenty of influence on the judiciary.



The historic election of 2010 delivered a clear "shellacking" to President Obama's policies, one of which was his choice of federal judges, including the extremely left-wing Elena Kagan, now on the Supreme Court. The Senate should refuse to confirm any of Obama's judicial or agency nominees in the lame-duck session.

Of course, Goodwin Liu is seen as one of the country’s top legal and constitutional scholars; Louis Butler did lose his 2008 race, but only after a vicious smear-campaign by corporate interest groups, and Chai Feldblum is a prominent law professor and disability-rights activist.

Rick Manning of the pro-corporate Astroturf group Americans for Limited Government is also calling on the Senate to reject Liu, by propagating the false charge that Liu believes health care is a constitutional right.

His views that health and welfare issues are constitutional rights are outside-the-mainstream, pitting those who believe in limited government power against those who would give unfettered power to the federal government.

Liu’s extremism is particularly disturbing because the court system is likely to be confronted by a variety of cases related to health care. Liu’s belief that health care is a right would put him firmly in the position of supporting an even broader expansion of the ObamaCare legislation to eliminate the private provision of health care services.

But as the Alliance for Justice points out, Liu in his legal writings made almost the opposite case about welfare rights such as health care:

[Liu] has argued for a model of judicial restraint, concluding that courts should not interpret the Constitution to create affirmative welfare rights, whether to education, health care, or minimal levels of subsistence. Liu has explained that “such rights cannot be reasoned into existence by courts on their own” and has explained that his understanding of the judicial role “does not license courts to declare rights to entirely new benefits or programs not yet in existence.”

Richard Painter, a former lawyer for the Bush White House, made clear in the Los Angeles times what activists like Phyllis Schlafly and Rick Manning are really up to. He argued that right wing groups are playing political games with the judiciary in their opposition to a renowned scholar like Liu:

A noisy argument has persisted for weeks in the Senate, on blog sites and in newspaper columns over President Obama's nomination of Liu to the U.S. 9th Circuit Court of Appeals. This political spat over a single appellate judge makes no sense if one looks at Liu's academic writings and speeches, which reflect a moderate outlook. Indeed, much of this may have nothing to do with Liu but rather with politicians and interest groups jostling for position in the impending battle over the president's next nominee to the Supreme Court.

A Tale of Two Charts

The Family Research Council’s Tom McClusky comments on today’s New York Times article reporting that President Obama will soon start making judicial nominations, saying he can’t believe that the paper “neglects to mention that the reason there are so many vacancies is the underhand tactics Democrats used over the years to block a number of nominees for these posts.”

Interesting.  As of today, there are 67 vacancies on the federal judiciary:

At this point in George W. Bush’s term in office, there were 94 vacancies:

If these 67 vacancies for Obama to fill are the result of the Democrats’ underhanded tactics against President Bush’s nominees, I wonder what was responsible for the 94 vacancies left for Bush to fill when he took office? 

Did The Slip Expose The Strategy?

Earlier today I wrote about the fact that a plethora of right-wing groups were publicly and vehemently opposing the nomination of David Ogden and several others to serve in the Justice Department.  In that post, I took a shot at Focus on the Family for penning an article about the opposition entitled "Obama's Judicial Nominees Stand on Anti-Family Principles," pointing out that people nominated to serve in the DOJ are not "judicial nominees."

But now I'm wondering if that that choice of phrase, despite being inappropriate, was actually quite accurate in that it signals that the fight over these Justice Department nominees is really just a precursor to the battle the Right is anticipating once President Obama starts putting forth nominations for the federal judiciary.  Because this quote from Tony Perkins certainly makes it sound that way:

Family Research Council president Tony Perkins said Obama's latest nominations only foreshadow a series of "hard left-wing ideologues" to come.

"These people will not only be extremely influential in the application of law. They will also play key roles in filling judicial vacancies on the nation's highest courts," he said.

Perkins added that their selection shows "Obama's rhetoric doesn't meet with reality." He says the country's highest courts would now be "packed" with "left-wing judicial activists bent on imposing personal and political agendas upon the American people."

Last week, I wrote a couple of posts pointing out that the Right had more or less been saving its ammunition as it awaits the battle over judges and had been busy laying the groundwork for its coming obstruction - and now it appears as if the coordinated campaign against Ogden and the others just might be the first salvo in that fight.

Fond Memories

Now that Alberto Gonzales has resigned from his position as Attorney General, the Right is desperately trying to put together some complimentary parting remarks about his pathetic performance in office  - and so far this is the best they have been able to come up with:

"Alberto Gonzales' work as White House counsel filling judicial vacancies with qualified nominees who respect the Constitution will have a lasting effect in bringing integrity back to our courts," said Wendy Wright, president of Concerned Women for America, a conservative lobbying group. "His example, coming from humble beginnings as one of eight children and as the son of migrant workers to becoming U.S. attorney general, should inspire others to achieve the American dream."

This, of course, provides us with an opportunity to take a look back at 2005 when Justice Sandra Day O’Connor announced her retirement.  At the time, rumors swirled that President Bush was considering nominating Gonzales to fill her seat and the Right was apoplectic:

Newsweek correctly states that “Gonzales is the only A-list contender who religious conservatives pledge, upfront, to fight.” The article quotes Tom Minnery of Dr. James Dobson's Focus on the Family saying outright about a potential Gonzales nomination: “We'd oppose him.”

In the same article, Manuel Miranda, head of the recently formed coalition of extreme conservative groups called the “Third Branch Conference” and a former Frist staffer fired for unethically reading internal Democratic judiciary staff communications, warned that a Gonzales nomination could doom the Republican Party in upcoming elections: “If the president is foolish enough to nominate Al Gonzales, what he will find is a divided base that will take it out on candidates in 2006.” Miranda went on to threaten retribution against Florida Governor Jeb Bush, if he decides to run for president. “We're not Republican patsies,” he said. “Jeb Bush can go sell insurance.”

In the same article, Phyllis Schlafly, a longtime radical and extreme right leader, said “Bush was very clear, and certainly his constituents believed him, when he said he would appoint justices like Scalia and Thomas. We are not in favor of Gonzales.” One of the reasons for the intensity of the opposition to Gonzales is that the Right feels that they were betrayed by President Reagan with his nomination of Sandra Day O’Connor who was, according to Schlafly, “a terrible disappointment.”

The National Review made its opposition to a Gonzales nomination clear in an editorial entitled “No to Justice Gonzales”: “[The] president has to know that conservatives, his supporters in good times and bad, would be appalled and demoralized by a Gonzales appointment. It would place his would-be successors in the Senate in a difficult position, forcing them to choose between angering conservatives by voting for Gonzales and saying no to him. If Democrats attack Gonzales . . . conservatives will not rally to his defense.”

At the time, the Family Research Council’s Tony Perkins warned that if President Bush nominated Gonzales “what you would hear would be [what] sounds like slashing the tires of the conservative movement” and stated that “our position on Attorney General Gonzales is, he holds great promise as an attorney general.” 

Well, Perkins’s first prediction was probably accurate, but his second couldn’t have been more wrong.