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Appearances are a large part of politics, and to the average American, President Trump appeared to cave ignominiously to House Speaker Nancy Pelosi (D-Calif.) and her left-wing caucus when he agreed to end the shutdown with no funding for border security, let alone a wall—his signature campaign promise.
So why is he also caving to Democrats when it comes to judges, another bedrock campaign promise to which his fidelity until now has been rock solid?
Carrie Severino of the Judicial Crisis Network reports that a “deal” is in the works between the White House and U.S. Senators Dianne Feinstein and Kamala Harris of California. The deal “would include one nominee chosen by the senators, one by the White House, and a third ‘consensus’ nominee.” The Wall Street Journal editorial board disapproves, and Erick Erickson has also sounded the alarm, noting that Pat Cipollone, the new White House counsel and successor to Don McGahn, seems to be going “behind the president’s back” to get this foolish deal done.
“The art of the deal”? Hardly.
So Much for Fixing the Ninth Circuit
Sadly, the heady days of promising to break up the “Ninth Circus,” the most liberal circuit court of appeals in the country, appear to be far behind us. That wasn’t merely a conservative fever dream, either. Just over a year ago, Rep. Darrell Issa (R-Calif.) officially proposed restructuring the Ninth Circuit and adding five new seats to the largest, most intransigent circuit in the nation.
Since Trump took office, the Ninth Circuit repeatedly has blocked his lawful exercise of executive power—particularly when it comes to immigration—and was slapped down most famously by the Supreme Court in Trump v. Hawaii (2018); there, the court correctly held that section 1182(f) of the Immigration and Nationality Act “vests the President with authority to restrict the entry of aliens whenever he finds that their entry ‘would be detrimental to the interests of the United States.’”
What is the sense in trying to “compromise” with hardline Democrats like Feinstein and Harris, senators who favor judges who would oppose such a clear-cut constitutional understanding of executive power and permissible congressional delegation—and much more besides? Before the 2018 midterms, judicial nominations were rightly fast-tracked to do an end run around obstructionist Democrats sitting on the Senate Judiciary Committee. So why “fix” what isn’t broken, especially when Republicans have an expanded Senate majority, a hugely consequential and atypical result that makes confirming judges even easier than when Trump took the oath of office?
Any “squishes” among the Senate Republicans who might have once worried Chairman Chuck Grassley (R-Iowa) and Senate Majority Leader Mitch McConnell (R-Ky.) can now be even more easily overcome, perhaps even bypassed altogether.
Looking for Deals in All the Wrong Places
And yet the plan seems to be forcing an awkward “deal-making” posture when one is neither wanted nor needed. A deal like this would be bad on the merits—the Democrats’ pick will of course be a “living constitutionalist,” and the so-called consensus nominee will invariably tack hard to the left, just like retired Justice David H. Souter did.
Even worse, it’s a strategic nightmare because giving in on judges in this way is like waving red meat in front of a hungry lion; it would incentivize the worst anti-Christian, anti-constitutional impulses of the modern Democratic Party.
Recall how in September 2017, Feinstein felt it would be appropriate to suggest that an eminently qualified nominee, Amy Coney Barrett, now a judge on the Seventh Circuit Court of Appeals, was not fit for the federal bench because of her orthodox Catholic faith. “The dogma lives loudly within you,” Feinstein intoned.
Anti-Catholic bigotry infects not just one but both of California’s Senate seats. Last month, Harris—a 2020 presidential hopeful—joined Senator Mazie “Men just need to shut up” Hirono (D-Hawaii) in attacking another highly qualified judicial nominee, Brian Buescher, because he is a member of the Knights of Columbus, a mainstream Catholic charitable organization.
They wondered aloud whether his Catholic faith would get in the way of his ability to judge cases “fairly and impartially.”
Thank God that Article VI, clause 3 of the Constitution—“no religious test shall ever be required as a qualification to any office or public trust under the United States”—makes it clear that acting on such hatred of people of faith is impermissible.
The federal courts have been the most important part of our judicial system, and arguably the strongest of the three branches, at least since the Warren Court of the 1960s; it wasn’t meant to be that way, of course—Hamilton wrote in Federalist 78 that judges were meant to exercise “neither force nor will, but merely judgment,” which is why the judiciary would be “the least dangerous to the political rights of the Constitution.”
History has not conspired to prove Hamilton right on this, however; and so the reality is that if you don’t control the courts, you don’t control the major power center in modern America. The Democrats know this; it’s why they are pushing for this phony “compromise.” President Trump should know better and put a stop to it.
If he does nothing, however, he will be signaling that it’s perfectly acceptable to object to nominees on grounds—their religion—repugnant to the Constitution and incentivizing such disgusting tactics. It would be open season the judiciary and the country.
Editor’s Note: ongoing developmentsSince going to press with this piece reveal that the Trump administration continues to be solid on judicial nominations, despite appearances it could waver. Two of the three original nominees to the Court of Appeals for the Ninth Circuit were renominated (Daniel Collins and Kenneth Lee), but Patrick Butamay wasn’t; he was instead nominated to serve as a district court judge in the Southern District of California. He was replaced by Daniel Bress, by all accounts a solid choice. The partial folding—while not as bad as it was expected to be—is still disappointing because of the identity politics involved. Butamay is a gay, Filipino originalist. He was opposed by Senators Feinstein and Harris because, if he were ever up for a Supreme Court seat, he would have been a serious PR nightmare. This is a lot like when Democrats kept Miguel Estrada off of the Court of Appeals for the D.C. Circuit because they didn’t want a Hispanic originalist within striking distance of the nation’s highest court. After all, Republicans are supposed to hate minorities; everyone knows that!
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