John Dean: A Republican Strategy That We Must All Hope Fails (judicial nominees)

[antigop]

http://writ.news.findlaw.com/dean/20090417.html

There is a high-stakes game for the future of the federal judiciary currently underway, albeit, at this time, still quietly being played out behind-the-scenes. Over a month ago, the New York Times revealed the then-imminent selection by the Obama Administration of "a small stream of nominees to the federal appeals courts" throughout the nation. The story even floated a few names of potential nominees. But little has happened since then.

Thus far, there has been no stream of nominees; indeed, barely a trickle. No one keeps score better than the Alliance for Justice, which reports three Obama nominees so far: Gerald Lynch for the U.S. Court of Appeals for the Second Circuit, Andre Davis for the Fourth Circuit, and David Hamilton for the Seventh Circuit.

The reason Obama's judicial nominees have not been streaming forth is that conservatives in the Senate are doing their best to dam that stream, literally and figuratively. To use the phrase coined by former Nixon speechwriter Bill Safire, the Obama Administration is being blocked by what can accurately be described as the new "nattering nabobs of negativism."

According to the coiner of the phrase, Safire, nattering is complaining; a nabob – taken from Urdu – is a self-important potentate; and negativism, of course, is habitual skepticism, the tendency to be pessimistic, seeing the world in the worst light possible. This outlook is very much the one possessed by the remarkably pompous contemporary conservative Republican leaders, particularly those in the Senate.

[HowHasItComeToThis]

1. But the Idea that Bush Nominees Previously Were Largely Blocked Is Absurd

Conservative Ownership of the Federal Judiciary Is Now Seriously Threatened, But the Idea that Bush Nominees Previously Were Largely Blocked Is Absurd

Conservative alarm sirens sounded last fall, as it became clear that Barack Obama was likely to win the November 2008 presidential election. A typical example of the conservative distress was that of Federalist Society co-founder (and nabob) Steven Calabresi, who went to the editorial pages of the Wall Street Journal – the bulletin board for nattering negativism.

Employing the intellectual legerdemain that has become the hallmark of contemporary conservative scholarship, where fancy becomes fact, Northwestern law professor Calabresi opened his call to arms by claiming that "ne of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts," most importantly, the U.S. Courts of Appeal throughout the country in general and in the District of Columba (with its jurisdiction over many government actions) in particular.

Here, however, "thoroughly thwarting" appears to mean that Bush II failed to win confirmation for a few of his most radical nominees, for he certainly managed to pack the federal courts with over 316 judges, who now constitute over 37 percent of the federal judiciary. Notwithstanding Calabresi's claim, the Senate in fact approved 95 percent of Bush's nominees. In fact, currently Republican presidents (Bush II, Bush I, Reagan, Ford and Nixon) are responsible for over 58 percent of the federal judiciary – and their reach includes seats on the U.S. Supreme Court, the U.S. Appeals Courts, and the U.S. District Courts, along with a few special courts as well.

Professor Calabresi, and other right-wingers, fear that the ideological balance will shift under an Obama presidency, particularly in the influential appellate courts. Today, most of those courts are controlled by conservatives. The New York Times cited University of Pittsburgh Law School Professor Arthur Hellman, whose studies of the federal circuit courts reveal that Republican judges dominate these courts and that they have moved federal law in a more conservative direction. (As court watchers know, conservative judges are more protective of corporations and the government than of those who can be victimized by these organizations; they are less concerned about the civil rights and liberties of average Americans; and they believe that presidents should be free to do most anything they desire, regardless of the other branches' role.)

[jwirr]

2. Do we have a recess coming up soon?