Wayne O'Leary

Short-Circuiting the Judiciary

We learned a few things on Nov. 3. First, except for ending the long national nightmare of the Trump years, the election was largely a setback for the left; if the slim Biden victory is combined with substantial Democratic losses in congressional races, the end result is politically a wash.

President-elect Biden will be reduced to governing through appointments and executive orders for the next two (or maybe four) years; no major legislation of any kind is apt to be enacted. In Congress, the blue wave of 2018 was converted to a blue ebb tide. The only hope for programmatic progress rests on Joe Biden’s supposed ability to work with Senate Majority Leader Mitch McConnell, but based on past experience, Mitch, who has his own agenda, will cooperate only if he gets most of what he wants; we could be headed for a reprise of the gridlock and legislative futility of the Obama years.

For progressives, the only positive news from the election lies with the justified discrediting of the Schumer-Pelosi candidate strategy of exclusively selecting and funding bland centrists or “moderates.” Conservative Republicans easily defeated Democratic moderates across the board in highly publicized Senate races — Maine, Montana, Texas, North and South Carolina, Iowa, Kansas, Kentucky. In the Bluegrass State, it was turtle time again, with McConnell chalking up an overwhelming 21-point win. Progressive candidates running on economically populist themes might well have done better, but they were never given the chance.

It’s evident that Democrats continue to pay a high price for their party’s embrace of economic globalization and financialization during the Clinton and Obama years, policies that led to the loss of once-Democratic blue-collar America and the rise of Donald Trump.

In addition, millions of voters, especially moderate Republicans and Independents, opted for Joe Biden in 2020 to rid themselves of Trump’s toxic excesses, but balanced the scales by voting GOP for Congress - - over a Democratic Party whose fixation on racial and gender issues they found suspect. The self-labelling of the Democrats as the nonwhite party (except, curiously enough, for Hispanics, whom they neglected) may make demographic sense for the distant future, but in 2020, voting America was still two-thirds white.

Which brings us to the judiciary, the issue of the hour leading up to the election because of the Barrett appointment. The Supreme Court is gone for now; say goodbye, Democrats. Unless the Georgia special elections produce two more Democratic Senate seats (a tall order), there is no short-term likelihood of structurally reforming the highest court in the land. But that leaves the lower appellate courts, specifically the US Courts of Appeals, or circuit courts (the second most powerful after the Supreme Court), and there some hope remains.

For the time being, Mitch McConnell’s partisan vow to “leave no vacancy behind” in regard to federal court appointments is coming to pass, whether Democrats like it or not. He’s already pushed through 52 Republican appeals-court judges since 2017 (44 of them, or 85%, endorsed by the conservative/libertarian Federalist Society), as many as Barack Obama got confirmed in eight years and between a quarter and a third of all those (179) now sitting. More Trump appointees are on the way during the Donald’s waning days, filling the remaining vacancies left when McConnell refused to act on nominations during the last two years of Obama’s final term.

Senate rules changes, a McConnell specialty, have produced this increasing preponderance of Trumpian circuit courts. The catalyst for Mitch’s single-minded zeal, ironically, was a reform by his predecessor as majority leader, Nevada Democrat Harry Reid, who in 2013 eliminated the filibuster rule on lower-court judicial nominations, replacing its 60-vote threshold with a simple majority vote for confirmations. This was done to free up Obama court nominations blocked by a recalcitrant GOP minority, but when Republicans regained the Senate the following year — they’ve held it ever since — McConnell was able to exploit the Reid reform for his own purposes.

McConnell didn’t stop there. During the Trump years, he’s eliminated the “blue-slip” policy giving senators veto power over home-state judicial nominees of the opposite party, neutered the informal Thurmond Rule against approving circuit-court nominations in the period leading up to an election, and reduced debate times on judicial nominees from 30 hours to two hours. Most creatively, McConnell has taken eager advantage of the federal judiciary’s semi-retirement program called senior status, which permits appellate judges over age 65 with 15 years’ service to remain on the bench part-time and carry reduced caseloads, yet still be “replaced” by additional supplementary judges appointed for life, who can eventually succeed them. Judicial critics have called this ploy court-packing in a different form.

The result is that Republicans have “flipped” three of the country’s 13 circuit courts since 2017 and hope to add two more by the end of this year. Moreover, the 17-member 5th US Circuit Court of Appeals, covering Texas, Louisiana and Mississippi, and considered the most right-wing jurisdiction nationally, has been made more conservative by the addition of five extremist Trump appointees to its GOP majority.

The circuit courts are critical not only as a proving ground for future Supreme Court justices (such as Amy Coney Barrett, formerly of the 7th circuit court), but because the cases they hear often reach the high court itself. Mitch McConnell is aware of these facts, and its why he’s stacking the circuit courts with conservatives, whether the selections are inexperienced, incompetent, temperamentally unfit, or ideologically extreme, as many have recently been. Donald Trump is aware of it, too, saying in late 2019, “I’ve always heard … that when you become President, the single most important thing you can do is federal judges.”

The good news is Trump enabler McConnell’s tactics regarding the courts can be turned back upon him by Democrats willing to respond in kind, employing his own arcane rules against him. And additional judgeships can always be created. All that’s lacking is that elusive Senate majority, up for grabs in January and in 2022. The precedent has already been set by the GOP itself, which used legislative majorities to expand (or pack) state supreme courts to its advantage in both Arizona (2016) and Georgia (2017).

Everything that goes around comes around.

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.

From The Progressive Populist, December 15, 2020

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