If the Republicans win the Senate, it could instigate an overdue crisis in judicial appointments.
Voters have good reason to view presidential elections as winner take all sweepstakes to slant federal courts to their ideological preferences.
Former President Donald Trump appointed 228 federal district and appellate judges and three Supreme Court Justices and with the help of the Federalist Society, pushed the judiciary harder to the right.
Now, President Biden is taking the courts in the opposite direction and imposing the race and gender prejudices of the of the progressive movement.
After one year in office, Mr. Biden managed to win confirmation for 42 federal judges — more than three quarters were women, two thirds were people of color, and only two were white males. One could not ask for a better example of a pattern and practice of discrimination.
Disqualifying a whole generation of young white men to pay for the injustices of past generations cuts to the heart of the corruption of affirmative action and can only serve to cultivate an insidious backlash.
Mr. Biden has taken pains to appoint judges with experience as criminal defense attorneys and public defenders. With the “defund the police” movement, impunity of many state legislatures and Democratic prosecutors toward larceny and the rise of violent crime in major cities, it should give us pause to think about the consequences of biasing federal judiciary toward defendant’s rights.
Judge Ketanji Brown Jackson crystalized these preferences. She was selected because she is a Black woman, is a former public defender and was chosen ahead of Judge Michelle Childs, who has experience representing corporate interests and California Supreme Court Justice Leondra Kruger, who is a genuine moderate.
It is no surprise that the Senate sees judicial confirmations through an ideological prism. After all, federal courts have stretched their reach beyond reason and abused judicial supremacy.
Think what you will about abortion, gay marriage and transgender rights, but fashioning compromises on such divisive moral issues should be the province of lawmakers, not judges. The Supreme Court preempted legislative discretion when it handed down decisions.
Often Congress and state legislators, weighing the competing sensibilities of voters or imposing their own values, have spoken in ways competing interests did not like. But it should not be the job of the judiciary to redress those grievances — that’s why we have elections.
When the objections of aggrieved parties were brought to the federal courts, instead of denying jurisdiction and bouncing those back to the political bodies of government, the Supreme Court stretched the Constitution and statute beyond a layman’s comprehension.
And it’s to a layman’s thinking, not the arcane theories debated in law journals, that the settling of moral considerations should appeal. Otherwise, we just fuel social rancor (consider abortion) and obtuse outcomes (consider the quarrels about schools teaching young children about sexual preferences).
Presidents have gotten into the habit of issuing executive orders where they lack legislated authority much like baseball players stealing signs — let’s see what we can get away with.
Former President Barack Obama admitted to doing so when he granted the DACAs temporary legal status but was not challenged in the courts during his tenure.
Last August, Mr. Biden publicly admitted to acting beyond the law when he imposed a second eviction moratorium.
Now Mr. Biden’s SEC appointees want to make climate policy by pressuring private firms to starve the oil and gas industry. You can sooner find the lost ark of the covenant than statutory or constitutional authority for that.
Regarding the DACAs, the Supreme Court effectively imposed its own law by blocking Mr. Trump’s executive order to negate a plainly illegal act by his predecessor and declining to pressure the Congress to finally reach a solution on immigration.
If the courts are to be our legislature of last resort, it is only logical that the Senate addresses court appointments — and especially Supreme Court appointments — as exercises in raw power. It’s abandoning to surrogates its legislative responsibility where it lacks the stomach to act or the demeanor to compromise.
Of the last four Supreme Court nominees, Judge Jackson and Justice Neil M. Gorsuch received only three Senate votes from the political party opposite the nominating president. Justice Brett M. Kavanaugh got one vote and Justice Amy Coney Barrett, none.
After the precedent established by a Republican majority refusing to vote on Mr. Obama’s Supreme Court nomination of Attorney General Merrick Garland, it seems apparent that if the GOP wins the Senate and a justice retires or dies, Republicans will refuse to act on whatever nomination Mr. Biden sends up.
A Supreme Court with only eight or even seven justices could finally join the issue on how we pick judges.
We simply can’t have a winner take all system for judicial appointments — it’s social dynamite.
• Peter Morici is an economist, emeritus business professor at the University of Maryland, and national columnist.