MARK KARLIN, EDITOR OF BUZZFLASH AT TRUTHOUT
The Republicans long ago figured out that the way to have legislative control over the United States is to pack the federal courts. This is a theme that BuzzFlash at Truthout has harped upon since the site began in May of 2000.
Recently, we noted how Antonin Scalia's withering disdain for Congress erupted into open contempt and dismissal of the legislative branch in oral arguments over the Voting Rights Act. As we noted then:
During oral arguments yesterday about whether or not the Voting Rights Act (VRA) is constitutional, partisan judicial thug Antonin Scalia revealed a new facet of his personality; he is a clairvoyant.
Congressional support for reauthorizing the VRA was overwhelming, even in 2006 when the vote was taken during Bush's second term: the Senate reauthorized it by a vote of 98 to 0. In the House, the vote was 390 to 33.
But Scalia, who has made his trademark being a self-proclaimed "strict constitutional constructionist" who scorns liberal judges who allegedly legislate from the bench, came out of the closet in heaping contempt and derision on Congress for passing the VRA. Although Scalia has long been perhaps the stellar example of a judge who legislates from the bench (on behalf of the right wing), he's usually coded his usurpation of congressional and other legislative powers in legal mumbo jumbo.
Yesterday, however, the Washington Post editorial board chastised Scalia for openly claiming:
"THIS IS NOT the kind of a question [the VRA, particularly Section 5] you can leave to Congress,â€ť Justice Antonin Scalia pronounced during a Supreme Court argument Wednesdayâ€¦.
We also noted a short time back how the Republicans control the DC Court of Appeals and have now since the Reagan administration. Because the DC Court of Appeals hears many of the most important federal cases, it has made a very large number of benchmark decisions that have been essentially legislating from the bench and creating an imbalance of power between the three branches of government (something the majority of 5 on the Rehnquist and Roberts Supreme Courts have excelled at).
In that BuzzFlash at Truthout commentary, we focused on DC Court of Appeals Judge David Sentelle, as we have often done over the years: "Republican Federal Judge David Sentelle: [An Example of] How the GOP Has Packed the Courts With Partisan Hacks."
Currently the DC Court of Appeals is short four judges because the Republicans won't allow most of Obama's appointments through (holding up some lower court appointments for literally years). Then they pack the federal benches when there is a Republican president, and the Democrats only rarely block GOP appointments.
So the Dems, you would think, might get some backbone when for more than two decades they have allowed the Republicans to legislate from the federal bench â€“ including big pieces of court legislation such as Bush being anointed, the Citizens United decision, and a big gun control ruling that favored the NRA, among others.
That is why this month a relatively unnoticed action by the GOP senate regarding an Obama nominee for the DC Court of Appeals is another fire alarm. As reported in the New York Times on March 6, "Republicans Block Judicial Nomineeâ€™s Confirmation for a Second Time":
Senate Republicans on Wednesday blocked the confirmation of Caitlin J. Halligan, a prominent New York lawyer, to become a federal appeals court judge in the District of Columbia, the second time in two years Republicans have filibustered her nomination.
The Senate, in a 51-to-41 vote, fell well short of the 60-vote threshold needed to cut off debate and bring Ms. Halliganâ€™s nomination to a vote. The largely party-line vote, with only Senator Lisa Murkowski, Republican of Alaska, joining with Democrats in favor of ending debate, was reminiscent of the previous filibuster of Ms. Halligan â€” another largely party line vote of 54 to 45.
Many Republicans said they oppose Ms. Halliganâ€™s nomination to the United States Court of Appeals for the District of Columbia Circuit because of what they say is her history of legal activism; most specifically, they say that as the solicitor general of New York State, she worked to advance the â€śdubious legal theory,â€ť in the words of Senator Mitch McConnell of Kentucky, that gun manufacturers could be held legally responsible for criminal acts committed with their guns.
â€śIn short, Ms. Halliganâ€™s record of advocacy and her activist view of the judiciary lead me to conclude that she would bring that activism to the court,â€ť Mr. McConnell, the Republican leader, said on the Senate floor. â€śBecause of her record of activism, giving Ms. Halligan a lifetime appointment on the D.C. Circuit is a bridge too far.â€ť
The Karl Rove doctrine is to project on an opponent what he is guilty of. That is what McConnell is up to; it would be a hypocritical farce if the stakes for democracy were not so frightful. The harm to the Constitution that has been done by the GOP strategic brilliance in manipulating the federal bench is incalculable.
But the Democrats in the White House and in Congress continue to fail to defend the federal bench by taking on the GOP opposition to appointments when there is a Democratic president and swift passage of appointments when there is a Republican president.
We concluded one recent commentary on this dilemma with, "The impact of a stacked Republican judiciary continues to be a blight upon the Constitution and an ongoing assault upon an independent federal bench. Given Harry Reid's cave on filibuster reform, relief does not appear to be on the way -- for either judiciary or regulatory appointments."
Even if the Democrats proceeded with serious filibuster reform (an up or down vote as the Republicans used to demand), it would literally take decades for the federal bench to be restored to a stance of equilibrium. That is because the Republican planted judges are so entrenched â€“ with appointments for life â€“ that their investment will pay off for them for years to come.
Should one of the infamous partisan five on the Supreme Court step down, will the Dems in the Senate let the Republicans have veto power over the "fifth vote"? If the past is prelude, the answer is yes.
Essentially, the Democrats in the Senate have enabled a coup of the federal judicial branch of government. It's silent like carbon monoxide, but deadly to democracy and the Constitution.
(Photo: Mark Fischer)