Wednesday, November 22, 2017

Republican Court-Packing Scheme Is A Threat To Independent Judiciary

While we're absorbed with the fresh daily outrages emanating from this rotted- out regime of neo- fascist Putin puppet Donald "Rump" Trump, a plan with far- reaching, negative effects on our society is already well underway.

In a must- read op/ ed this morning, former White House aide Ron Klain alerts us to a right- wing court- packing scheme that would radicalize the federal judiciary for a generation or more. Klain describes a three- stage plan he calls (in the Thanksgiving spirit) a turducken:
The “outer turkey” in the plan is the ongoing Trumpification of the courts. [snip] 
Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump’s first nine months, he named 58. Senate Republicans are racing these nominees through confirmation; last week, breaking a 100-year-old tradition, they eliminated the “blue slip” rule that allowed home-state senators to object to particularly problematic nominees. The rush to Trumpify the judiciary includes nominees rated unqualified by the American Bar Association, nominees with outrageously conservative views and nominees significantly younger (and, therefore, likely to serve longer) than those of previous presidents. As a result, by sometime next year, 1 in 8 cases filed in federal court will be heard by a judge picked by Trump. Many of these judges will likely still be serving in 2050(our emphasis)
In reading this, keep in mind the outrageous Republican obstruction of President Obama's judicial nominees, the most egregious example of which was stealing the Supreme Court seat from Merrick Garland and giving it to crackpot Neil Gorsuch.

The second layer of the right- wing assault is court- packing:
... [A] new plan written by the crafty co-founder of the Federalist Society, Steven Calabresi. In a paper that deserves credit for its transparency (it features a section titled “Undoing President Barack Obama’s Judicial Legacy”), Calabresi proposes to pack the federal courts with a “minimum” of 260 — and possibly as many as 447 — newly created judicial positions. Under this plan, the 228-year-old federal judiciary would increase — in a single year — by 30 to 50 percent. [snip] 
Almost overnight, the judicial branch would come to consist of almost equal parts judges picked by nine presidents combined — Johnson, Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and Obama — and judges picked by one: Donald J. Trump. The effect on our civil rights and liberties would be astounding. And a continuation of the pattern of Trump’s nominees to date — more white and more male than any president’s in nearly 30 years — would roll back decades of progress in judicial diversity. (our emphasis)
Has this right- wing turducken made you sick yet?  No? Here's the final layer:
Calabresi has also proposed that Congress abolish 158 administrative law judgeships in federal regulatory agencies, such as the Environmental Protection Agency, Food and Drug Administration, Federal Communications Commission, and Securities and Exchange Commission, and replace these impartial fact-finders with a new corps of 158 Trump-selected judges who — unlike current administrative law judges — would serve for life. (our emphasis)
How would this un- democratic takeover of the federal judiciary take place?  Why, Calabresi wants it in that sociopathic Republican wealthfare bill!

As with the permanent tax cuts for corporations, Republicans want to lock in these radical changes to the federal judiciary before the 2018 elections.  This is another battle that's being forced on us by right- wing overreaching, and it's perhaps the most significant in terms of long range impacts. Think Progress has more on the scheme here.

Back in 2013, when Democrats had the Senate majority, and the talk was of filling D.C. Circuit Court vacancies (not the entire federal judiciary), the Cicero of the Cornfields Sen. Chuck Grassley (R-IA) was in high dudgeon:
“A type of court-packing reminiscent of FDR’s era,” warned Iowa Sen. Chuck Grassley. “Packing the court because it has issued rulings against the administration is a cynical approach to the judicial branch.”
Grassley, now chair of the Senate Judiciary Committee, was a dishonest broker then, and he's likely a dishonest broker now. (Don't expect honor or consistency when corrosive tribal impulses are at play. It's in Republican DNA after all.) That's why it's likely to fall exclusively to Democrats to stop this from happening, by using every legislative and administrative trick in the book to slow this turducken down. We need to encourage them to do so.


Infidel753 said...

More turd than turducken here, to be sure. But if they stuff this into the tax "reform" bill alongside the Obamacare sabotage that's already there, it will surely make the entire entrée even more bloated and unpalatable. They can barely get to 50 votes in the Senate as it is.

The ThinkProgress piece is right to say that a scheme like this would open the way for retaliation in kind by Democrats if and when we retake the government. In fact, I'd say that the shenanigans so far have already gone some way to doing that. If we retake the Senate majority next year -- a tall order, but looking more plausible every day -- our Senators should refuse to confirm any Supreme Court nomination Trump (or probably Pence, by then), makes. If McConnell can hold a seat vacant for eight months, we can do it for two years, until we get a Democratic President. Only retaliation in kind will persuade the Republicans to stop doing this kind of thing.

After all, if Roy Mo[lest]ore loses the election next month, I wouldn't put it past trump to nominate him to the Supreme Court.

W. Hackwhacker said...

Infidel - I hope you're right about the prospects. Repubs are going to be under enormous pressure to come through - the fact that Murkowski folded on the ACA individual mandate makes me think others might find a way to rationalize getting to "yes."

Anyway, I agree Democrats need to retaliate in kind. Growing some balls now would be a good first step. Thanks!