Judges

Maybe the dumbest of the many dumb remarks I heard in 2016 from people who “just couldn’t bring myself to vote for Hillary” was I’m so sick and tired of being told I should vote for Hillary because of judges. Why? You mean you’re happy with the 6-3 reactionary majority (that could have been 6-3 moderate-to-progressive)? You really disliked the Great Society, New Deal, and Progressive era so much you’re happy to see them go?

 In today’s polarized world, there is, in fact, no more important reason to vote for a candidate.

 It wasn’t always true. For a quarter century (from the unsuccessful June 1968 nomination by LBJ of Homer Thornberry to replace Abe Fortas to the June 1993 nomination of Ruth Bader Ginsberg by Bill Clinton), 14 consecutive Supreme Court nominations were made by Republican presidents. And the Republic didn’t collapse. Except for Clarence Thomas, nobody was even that upset. In fact, the character of the court barely changed. Three (Haynsworth, Carswell, Bork) were rejected; two (Scalia, Thomas) are among the worst justices ever. But John Paul Stevens and David Souter were among the most liberal justices ever while O’Connor, Kennedy, and Blackmun at least occasionally sided with the liberals. That was Supreme Court nominees from 1789 until recently: you tried to find a distinguished jurist who generally agreed with your philosophy.

 Like the bipartisan Senate, that world is gone. Instead, there are two notable facts about the post-Trump/trans-Biden judiciary.

 First, the Republican appointees are even worse than you imagined. There is no longer any pretense that they are animated by any judicial philosophy: precedent, respect for legislature, Founder’s intent, text, etc. They simply decide what they want and invent a justification.

 Second, below the Supreme Court level, Biden has transformed the courts. Since mid-2022, 126 Biden appointments to the Federal judiciary have been confirmed by the Senate and sworn in, giving him a total of 191, with more than 6 months left in his term. Add to that the 47 existing vacancies (including 9 cleared by committee and awaiting a confirmation vote) and Biden has an excellent chance of surpassing the Trump nomination and confirmation machine. Overall, there are nearly 100 more Dem-appointed federal judges than appointed by a Rep (459-367). Yes, the Supreme Court is a toxic waste dump, but it’s a different story below that level. Even at the Circuit court level, Dems control 8 circuits, Reps 6. And that’s not unimportant; the Supreme Court only takes so many cases and 90% of the time, a Circuit or District court action is final. Given another equally productive term, the character of the courts would be transformed.

 But here is the most astonishing – and foreboding – number you’ll see in politics this year.  In that time period, of the 343 Obama and Clinton appointed judges in place in mid-2022, 76 (22% of the total) have stepped down. In that same time period, among the 389 Republican-appointed federal judges, 22 (6%) have stepped down.

 That can only mean one thing.  That is, both parties have internalized the complete politicization of judicial appointments. The Democrats seem to have learned from the RGB fiasco and have “cleared the deck” to some extent, retiring now to ensure a Democrat is able to replace them. Second, it seems equally clear that a boatload of Republican judges – Reagan appointees have been there at least 35 years, HW Bush appointees at least 31 years – are delaying their retirement, hoping a Republican is elected to replace them. Inevitably, there is going to be a rush of retirements by Republican-appointed judges for whoever is elected in 2024, perhaps as many as 100 judges right off the bat.

 If you ever doubted the importance of who sits in the Oval Office, ponder that.