What Democrats Must Do To Stop A Right-Wing Hijacking Of The Judiciary

More than two hundred years ago, the Framers of the Constitution insisted that the United States have a strong independent judiciary to defend the civil liberties of ordinary people from the arbitrary exercise of executive power.

The Judicial Branch was intended as the most potent weapon in America’s arsenal to defend itself against the emergence of a tyrannical, authoritarian government that scapegoats minorities, and deprives ordinary people of their democratic rights.

Rarely in American history has an independent judiciary been more important to defend American democracy than it will be during the Trump era.

But throughout the Obama administration, the Republican Senate leadership has used unprecedented obstruction in a systematic attempt to hijack the judiciary and transform it from an independent defender of civil liberties into a rubber stamp for right wing ideology.

As of December 25 there were an estimated 103 judicial vacancies that President Trump will have the power to fill immediately, compared to the 54 vacancies that President Obama inherited from the Bush administration.

Most of these vacancies resulted from the Senate’s failure to take action, or because it slow-walked Obama nominees. In fact, when the Senate left Washington for the holidays, 25 Obama court nominees were actually pending on the Senate floor, after having been approved out of committee with bi-partisan support, but none got a vote before the Senate adjourned.

Most outrageous, the right is trying to steal a Supreme Court seat that should have been filled by President Obama and hand it to Donald Trump.

As the New York Times points out in a Christmas day editorial:

(The seat) was stolen from Barack Obama, a twice –elected president who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected federal appellate judge.

It was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court’s conservative majority.

Renowned University of Chicago Constitutional scholar Geoff Stone put it this way:

By refusing to confirm President Obama’s appointment of Chief Judge Merrick Garland to the Supreme Court, Senators Mitch McConnell, Charles Grassley, and their Republican cronies betrayed our constitutional traditions and undermined a central principle of American democracy. Although they maintained that their unconscionable behavior was “justified” by the fact that the vacancy arose during President Obama’s final year in office, this was a blatantly dishonest assertion. In fact, a long line of presidents have made appointments to the Supreme Court in the final year of their terms, including such historic figures as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Ronald Reagan.

Stone is no novice to these matters. He has taught constitutional law to generations of law students; served as a law clerk to Justice William J Brennan, Jr; was co-author of one of the nation’s leading constitutional law textbooks; is an editor of the Supreme Court Review and is editor of a 20-volume series titled “Inalienable Rights.”

So what can Democrats do?

For any nomination to the Garland seat on the Supreme Court, and for the first 100 vacancies to the lower courts, Democrats should use one simple criterion for approving any nominee:

Would the nominee be similar to those who would have been proposed by Barack Obama?

If the answer is no, Democrats in the Senate should simply refuse to vote yes – ever.

The other side will no doubt argue that President Trump has been elected and the Senate is somehow “obligated” to consider his appointments. The GOP will say that they were refusing to consider Garland and other nominees so that the “voters” could weigh in.

Well, the voters did weigh in and, of course Hillary Clinton was supported by almost 3 million more of them than Donald Trump – they just happened to be in the wrong states to count in our archaic presidential election system.

What’s more, under the Constitution, these vacancies should have been filled by President Obama, and were instead, stolen by the GOP leadership through unprecedented obstruction and refusal to do their job.

In foreign affairs we all know that in many circumstances if a foreign actor takes a hostile action against the United States, it may be necessary to take proportionate retaliatory action to prevent that actor from repeating those hostile actions with impunity.

The same is true here. If Democrats allow the right wing to steal these seats in the judiciary – if Democrats offer no proportionate response – the right will create a judiciary that is a right-wing ideological rubber stamp – not the independent judiciary that is so necessary today to protect our civil liberties.

Under current Senate rules, Supreme Court nominees are still subject to a filibuster. In order to approve any nominee, Republicans – who have only 52 Senate seats – need eight Democratic votes. That means that if Trump proposes a nominee to fill the Garland seat that has a more right-wing record than Garland himself, every Democrat should simply vote no until Trump proposes someone at least as progressive as Garland – or until Trump’s term ends four years from now.

When it comes to lower court nominations, the Senate has eliminated the filibuster rule and allows passage with a simple majority. Democrats need to do everything they can to put Republican leaders through every procedural hoop imaginable before they get an up or down vote.

And we all must insist that Republican senators are held accountable if they vote to confirm nominees for “stolen seats” who are not at least as progressive as President Obama’s choices were – or would have been.

We don’t need some elaborate justification, or other arguments about qualifications – although any thing that is useful should be used in these fights. We simply need to make clear that when it comes to these stolen seats in the judiciary, a candidate can be the most “qualified” and experienced person on earth, but if he or she does not have a record similar to one that an Obama nominee had, or would have had, they will be summarily rejected. No more justification is required than that.

That is the best justification there is. Voters will not punish senators for refusing to vote to fill stolen seats with right-wing clones. Voters might not always understand arcane legal doctrines, but they certainly understand right and wrong. People who steal things – including judicial seats – should not ever be rewarded, simple as that. That’s just plain wrong.

Robert Creamer is a long-time political organizer and strategist, and author of the book: Stand Up Straight: How Progressives Can Win, available on Amazon.com. He is a partner in Democracy Partners and a Senior Strategist for Americans United for Change. Follow him on Twitter @rbcreamer.