OPINION | How Democrats stole the nation's lower federal courts
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The Democrats, and Sen. Chuck SchumerCharles (Chuck) Ellis SchumerSenate Dems hold floor talk-a-thon against latest ObamaCare repeal bill This week: Senate wrapping up defense bill after amendment fight Cuomo warns Dems against cutting DACA deal with Trump MORE in particular, have engaged in an outrageous set of practices from 1993 to 2017 that have allowed them to steal huge majorities on all the federal circuit courts of appeals.  This story needs telling because Senate Republicans, while performing very admirably in replacing Justice Scalia with Justice Gorsuch, have had their pockets picked with the courts of appeals.  

Federal courts of appeals decide over 60,000 cases a year while the Supreme Court decides only 80.  We could have a Supreme Court of nine Justices Gorsuch and still lose 59,020 cases a year.  That is a pretty bad situation for Republicans in the judiciary.  Moreover, the current imbalance has occurred almost entirely because of the bad-faith dealing of Sen. Chuck Schumer, who has outwitted Republicans at every turn.  

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Bill ClintonBill ClintonGOP rep: North Korea wants Iran-type nuclear deal Lawmakers, pick up the ball on health care and reform Medicaid The art of the small deal MORE served as president from 1993 to 2001; he made two Supreme Court appointments, 66 judges to the federal courts of appeals, and 307 judges to the federal district courts.  For the last six years of Clinton’s presidency the Senate was controlled by Republicans and confirmed almost all his judges without filibustering any of them.  Forty-six Clinton nominees were confirmed to the crucial courts of appeals by the Republican Senate between 1995 and 2001.

In 2001, George W. Bush was elected president, and he made two Supreme Court appointments.  He appointed 62 federal Court of Appeals judges, four fewer than Clinton, and 261 federal trial judges, 46 fewer than Clinton.  Democrats, at Chuck Schumer’s urging, refusing to confirm initially some of the brightest and most conservative Bush judicial nominees such as Michael McConnell, Bill Pryor, Priscilla Owens, and Janice Rogers Brown.

Bill Pryor’s treatment is indicative of Democratic behavior during the younger Bush’s presidency.  Pryor was nominated to the 11th Circuit Court of Appeals on April 9, 2003.  A Republican Senate was unable to confirm him until June 9th , 2005 — two years later.  

Because there had never been a filibuster of a lower court judge ever before in American history, Senate Republicans prepared to endorse the nuclear option to amend the Senate rules forbidding filibusters of judges.  A gang of 14 senators then got together to save the filibuster of judges for a real emergency and in exchange Senate Democrats let Pryor, Priscilla Owens, and Janice Rogers Brown get confirmed.  They then promptly resumed filibustering Bush’s judicial nominees.

What these filibusters meant in practice were that, with a few exceptions, the only Republicans who Bush could appoint to the federal courts of appeals were judges like George H.W. Bush-appointee David Souter and Ronald Reagan-appointees Sandra Day O’Connor and Anthony Kennedy.  These weak-kneed Republicans frequently caved when they sat on panels that included bright, ideologically committed liberals put on the bench by Bill Clinton with the help of a Republican Senate.

After the Democrats regained control of the Senate in 2006 they confirmed only eight Bush Court of Appeals nominees in 2007 and only two in 2008.  

Peter Keisler, for example, who would later serve as acting attorney general of the United States, a post in which he did a superb job, was nominated to the Court of Appeals for the District of Columbia Circuit on June 29, 2006 for the seat that had been held by Chief Justice John Roberts.  On August 1, 2006, he received a hearing before the Senate Judiciary Committee, but the Senate never acted on the nomination.  Keisler was re-nominated to the D.C. Circuit on January 9, 2007, but the Judiciary Committee refused to act on his nomination for two years, mainly because Keisler had clerked for Judge Robert Bork.

President Obama was elected in 2008, and he also appointed two Supreme Court justices.  He appointed 55 judges to the federal Courts of Appeals and 268 to the federal District Courts.  Senate Republicans filibustered some of Obama’s judicial nominees, and as a result the Democrats, who controlled the Senate in 2013 abolished the filibuster of lower court judges and of executive branch nominees.  Obama proceeded to appoint very ideological left wing judges to the Courts of Appeals where they were ineffectually opposed by the Republican Souter-O’Connor-Kennedy judges who Senate Democrats had “allowed” to get 60 votes during the George W. Bush presidency.

The Senate has in six months confirmed only four Trump nominees, one of whom is Justice Neil Gorsuch who sits on the Supreme Court.  The Trump administration has many pending judicial nominees that it has sent to the Senate, but Senate Republicans are not even bothering to hold hearings on them and confirm them even though they are well on their way to losing their majority in the 2018 midterm elections notwithstanding a very favorable judicial map.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSenate passes 0B defense bill Overnight Health Care: New GOP ObamaCare repeal bill gains momentum Overnight Finance: CBO to release limited analysis of ObamaCare repeal bill | DOJ investigates Equifax stock sales | House weighs tougher rules for banks dealing with North Korea MORE simply has to pick up the pace on confirmations.  Otherwise, we will continue to lose cases we should win, like President Trump’s travel ban in the lower federal courts. Moreover, many if not all the deregulatory efforts that President Trump is making will also be overturned in the Obama-Clinton dominated lower courts.  There is a huge amount at stake here for Senate Republicans and not a minute to waste.

Steven G. Calabresi is the Clayton J. and Henry R. Barber professor of law at Northwestern University. Mr. Calabresi served as a law clerk to Justice Antonin Scalia of the United States Supreme Court, and he also clerked for U.S. Court of Appeals Judges Robert H. Bork and Ralph K. Winter.


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