Wednesday, July 16, 2008

Why this election matters: The lower courts

I recently posted about how the Supreme Court is one big reason why this election matters. This article also points out how the lower courts also matter to a great degree, possibly even more so than the Supreme Court on a practical scale for many people. Because the president appoints all federal judges, not just the Supreme Court. And while the really big issues will get taken up by the high court, the vast majority of cases end at the federal appellate courts. This is because after a federal trial, you get one appeal as of right to the relevant Circuit Court of Appeals. And while you can appeal after that to the Supreme Court, odds are very good that such an appeal, which is by leave only, will be turned down. In recent years the high court has heard less than 100 cases (usually more like 80) per year, in years where the cases in the lower courts number in the many many thousands.

So the final word for most people will be at the Circuit Court. And so for most people the judges appointed at that level will be the most important decisive factor for their case.

With the number of (in particular) young judges appointed by Republican presidents over the past decades, those Circuit courts are all dominated by conservative GOP appointees. All have healthy majorities of GOP people, except for the 9th Circuit, which is more balanced. (And of course, which makes the 9th Circuit the whipping judges for complaints about court rulings made by GOP schills).

The Republicans know this, which is why they pick very young, very ideological candidates for these judgeships, with the intention of them sitting on the bench for decades. That's also why they whine when even a single extremist judge is prevented from confirmation. Witness the mantra of how every judge deserves an "up or down" vote and how suddenly the filibuster is an evil thing that is unsupported by the constitution because Senate confirmation only requires a simple majority (forgetting that this is the same rule for approval of legislation). Of course, they are HUGE hypocrites, because when the GOP controlled the Senate while Clinton was in office, they denied "up or down" votes to HUGE numbers of Clinton appointees, not by filibustering (since they didn't need to) but by simply refusing to even schedule hearings about the confirmation.(*) Dozens of judges sat waiting for years like this, a record number, only to be ultimately denied after Clinton left office. So after doing this to dozens and dozens of Clinton appointees, the GOP whined is ass off about a handful of judges being filibustered early in Bush's tenure. What a bunch of shameless assholes. What is sad, though, is that the know-nothing media just repeated the right wing talking points on this and did not provide any context by pointing out the hypocrisy or what the GOP did to Clinton appointees. Even sadder, the Democrats themselves failed to do this effectively.

But I digress. The main point is, who is president matters for these appointments. Obama may not be a leftie, but he sure isn't a neocon, either (though I've seen PUMAs claiming he is - just proving that there are no limits to how far one can be unhinged from reality (or how willing one can be to spew bullshit) in pursuit of power). Just getting centrist rather than far-right ideologues would be a vast improvement in all of the Circuits. It would help at the trial level as well.

It is about transforming (and salvaging) one entire branch of the government out of only three branches that we have. That is damn important. Anyone who dismisses this as some trivial thing (as PUMAs and those like them have done) is, frankly, stupid and shortsighted.

This election (like others before it) isn't just about one branch of government, but is about two. That's something you can NEVER afford to simply cede to the right-wing crazies, not even for four years. Sure, it sucks that the Democrats often don't give us much better on many issues, but better is still better, and on judges, they are WAY better. It will take decades for the tide to be turned back in judicial appointments. It is time to get started.

(*) - I should also note that a lot of the judges Clinton did get confirmed by the GOP Senate went through a process where Clinton would get a list of acceptable candidates to the GOP in advance, so he would know that his appointees would get their hearings and confirmation. This is notable in contrast to Bush, who when he faced a hostile Senate, just kept sending back the same names over and over and never sought to come to any compromise on his appointments with Democratic Senate leaders the way Clinton did. In other words, Clinton acknowledged the power of the Senate as a co-equal branch and worked with it. Bush just pretended he was god and kept trying to shove the same candidates down the Senate's throat with no consultation and then whined when the Senate didn't bow down and surrender (which actually, it generally did, even with his judicial appointments).

Addendum: I want to add that to a certain degree, I think what happened with Clinton and the GOP Senate was a good thing - the two branches (and parties) cooperated in the process of selecting the third branch. That is as the founders intended. That is why the Senate has confirmation power in the first place. The Executive should not just be able to place anyone he or she wants on the bench. The Senate gets the final decision as to whether or not a potential jurist gets the job. It is not the case that the Senate can only reject someone if they are not "qualified" (whatever that means). The Senate can reject for any reason it wants. Including and especially ideology. Just like the President can select based on ideology. Checks and balances.

Where things got out of whack is where only the GOP Senate acts as a check on a Democratic president while the GOP president basically gets free reign from a Democratic Senate. That is wrong and that also leads to one branch having total say in selecting the third. That's one of the reasons I am uncomfortable when Congress and the White House are controlled by the same party. Of course, it concerns me less when it is the Democratic party, mostly because the Democrats are so good at fighting themselves that they hardly need the GOP as a check. When the GOP has control, though, it is open season on all of us as they all march in authoritarian lockstep and the divided Democratic party doesn't even have the will to slow them down. (Not even when they take Congress back). It almost seems like that the ideal "balanced" government is a GOP Congress (narrow majority) with a Democratic president. Except that even with a Democratic Congress, the GOP seems to still get its way anyway much of the time. The Democrats need to grow a f***ing spine.

Because of those whacked-out dynamics of the parties, it is essential that we have a non-GOP president appointing judges. While we may not get anything better than centrists, that is a far cry better than the right-wing ideologues we are guaranteed to get from McCain.

2 comments:

The Barefoot Bum said...

Again, you're arguing against yourself. If Obama wins, why should we expect anything different than what happened with Clinton:

[W]hen the GOP controlled the Senate while Clinton was in office, they denied "up or down" votes to HUGE numbers of Clinton appointees, not by filibustering (since they didn't need to) but by simply refusing to even schedule hearings about the confirmation.(*) Dozens of judges sat waiting for years like this, a record number, only to be ultimately denied after Clinton left office.

... a lot of the judges Clinton did get confirmed by the GOP Senate went through a process where Clinton would get a list of acceptable candidates to the GOP in advance, so he would know that his appointees would get their hearings and confirmation.


So if Obama gets elected, the only judges he will successfully appoint are the ones pre-approved by the GOP. Obama has shown no capability or willingness to challenge the GOP on these sorts of political fights.

Sorry, you're still not showing that I have any better choice than between bad and worse.

And dude... "a lot" is two words!

DBB said...

Are you saying I mess up alot? ;)

First, Obama will not have a GOP Senate, so he won't have the same problem as Clinton - the GOP could still filibuster, but then they look like hypcrites and it is harder for them to justify it - not that the media won't let them do so.

In any event, even the GOP approved judges were still centrists or even center left. Not even the GOP was so brazen as to insist that Clinton could only appoint right-wing ideologues.

If Obama is smart and politically saavy, he could get further left judges put on the bench with a friendly Senate. I don't really expect that he will, but the possibility exists. With McCain, it is guaranteed we'll get more far right ideologues who, 9 times out of 10, the Democratic Senate will meekly confirm.

So it is still a choice between McCain who will appoint ultraconservative judges and Obama who will appoint (and confirm) centrist judges. Centrist judges aren't exactly what I'd call a "bad" choice. It isn't a choice between right wing and extreme right wing - that would be bad and worse.