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EDITORIAL: Remaking the courts

The Democrats count on Republican reluctance to resist

- - Monday, November 18, 2013

Senate Republicans are standing up, so far, to President Obama's attempt to pack the U.S. Court of Appeals for the D.C. Circuit with radical judicial activists. A filibuster blocked a vote on the confirmation of Cornelia Pillard last week and of Patricia Millett two weeks before that. Predictably, Senate Democrats declared that the forthright Republican opposition was another skirmish in the "war on women."

"It's a well-worn card," says Sen. Chuck Grassley, Iowa Republican, of the Democratic strategy. "And they play it every time." Well, not quite every time. When Republicans attempt to block confirmation of U.S. District Judge Robert L. Wilkins, who is black, to the appellate bench, Democrats will play the race card.

Opposing women and blacks is said to be part of Republican war on two fronts. It's not war when Democrats oppose female and black nominees. Forty-three Democrats voted unsuccessfully to deny George W. Bush's nominee Janice Rogers Brown to the appellate bench because she was not woman enough, just as Clarence Thomas was judged by Democrats to be not black enough. The Democrats guard their race and gender formulas as fiercely as Coca-Cola protects the formula for the popular soft drink.

Mr. Obama let slip the game at a private Democratic Senatorial Campaign Committee fundraiser early this month. "We are remaking the courts," he told them. The claim was brazen enough to make the ghost of FDR, lurking nearby, blush.

Republicans are rightly troubled by the prospect of remaking the courts by adding radical activists to a bench that doesn't even need new judges. Senate Minority Leader Mitch McConnell says that if more judges are added to the panel, "there wouldn't be work enough to go around." With some other federal appeals courts having legitimate vacancies, attention should be paid to "where judges are needed and where they're not," says Sen. John Cornyn, Texas Republican, "And this court demonstrably doesn't need new judges. It's not any more complicated than that."

Senate Republicans must resist their natural instinct to capitulate, as they did in July by enabling the president's left-wing nominees to take positions on the National Labor Relations Board, the Environmental Protection Agency and Consumer Financial Protection Bureau. Republicans retreated in the face of Senate Majority Leader Harry Reid's threat to deploy the "nuclear option" to change Senate rules on a party-line vote to strip the minority party's filibuster rights.

Democrats argue there should be an up-or-down vote out of fairness, since no Democratic senator has expressed any reservations about these nominees. All 55 would vote in lockstep to confirm them no matter how far out of the mainstream they might be. Such an argument could be worth considering for a temporary appointment to a labor or environmental policy board. The stakes are higher for lifetime judicial appointments. Republicans must take great care. The D.C. appeals court is often a step to the U.S. Supreme Court.