- - Sunday, July 16, 2017


Restoring the federal judiciary to its constitutional moorings is what many Americans call Job 1, and it was on this issue they put aside their considerable reservations about Donald Trump, swallowed hard, considered the alternative, hoped for the best, and cast their votes for him. On this score, he has redeemed their faith.

The president came through with his appointment of Neil Gorsuch to the U.S. Supreme Court, who is proving a worthy replacement for Antonin Scalia as a faithful servant of the Constitution, regarding it not as a weathervane, subject to every breeze that blows, but as the living document the Founding Fathers intended it to be.

Mr. Trump continues to honor his promise to appoint judges with due regard to the law, precedent and above all to the Constitution. The Senate Judiciary Committee cleared several more nominees to federal courts, including appeals courts, last week, and hours later announced another slate of similar nominees to U.S. District courts.

There are 137 vacancies in the federal courts, an unusual number, which gives the president an unusual opportunity to reshape the judiciary. Barack Obama used a similar opportunity to appoint a large number of judges whose legal philosophies lean to the left, sometimes to the far left. The Constitution, in this school of law, does not necessarily mean what it says it means, but means whatever a judge finds it convenient to believe it means.

Among those names forwarded to the Senate on Thursday are John Bush, a lawyer in private practice in Louisville, and Damien Schiff. Mr. Bush was named to the 6th U.S. Circuit Court of Appeals in Cincinnati and Mr. Schiff was appointed to the U.S. Court of Federal Claims in Washington. In addition, the nomination of Kevin Newsom to the 11th U.S. Circuit Court of Appeals in Atlanta was advanced to the Senate for confirmation by a vote of 18 to 2, remarkable in the present era.

The Bush and Schiff appointments were particularly interesting in the light of how partisan politics are reflected now in the judiciary. Mr. Schiff has called U.S. Supreme Court Justice Anthony Kennedy a “judicial prostitute” for some of his decisions, and Mr. Bush called U.S. Sen. Ted Cruz “a sore loser” for declining to endorse Donald Trump at the Republican National Convention after the convention nominated Mr. Trump for president.

Such partisanship has become the norm in the federal judiciary, with most of it on the left, and some of it at the Supreme Court. Justice Sonia Sotomayor promised to rule as “a wise Latina,” presumably in lieu of the Constitution, and Justice Ruth Bader Ginsburg threatened to move to New Zealand if Mr. Trump was elected. She later apologized, and stayed in town.

Both John Bush and Damien Schiff survived bruising confirmation hearings. Both were grilled for what critical senators called “inflammatory posts” on law blogs, and Mr. Cruz, “the sore loser,” is a member of the Judiciary Committee. He voted to confirm Mr. Schiff, anyway.

The nominations endorsed by the Judiciary Committee last week were greeted with the usual partisan warmth, but as if coming from competing planets. The Judicial Crisis Network said the nominees were well known for their “principled and evenhanded application of the law,” and “for many Americans whose top concern in November was electing a president who would put committed constitutionalist to the courts, this is another major victory.”

But on the other planet, perhaps Pluto, the nominations were viewed as if through a glass, darkly. “[Mr.] Trump’s nominees thus far have had troubling records,” said a spokesman for the Alliance for Justice, “that have raised real concerns about their ability to act independently of the executive branch.” The planet Pluto, obviously, is no longer in the ascendency.

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