It’s no secret that President Obama was behind the push to end the filibuster as a means of blocking nominees for U.S. appeals court judgeships. At a fundraiser earlier this month, he told liberal donors that he is “remaking the courts.”
Recognizing that the filibuster stood in the way of a full radical makeover, Obama personally lobbied three Democratic Senators who were undecided about whether to eliminate it. Obama reportedly told them “how important this was to him and our ability to get anything done for the rest of the term.”
The White House stressed the need to confirm three new judges for the D.C. Circuit, which rules on a wide swath of regulatory issues. Stymied by Congress, Obama plans to push his left-wing agenda through regulatory overreach. He needs liberal judges to prevent the resulting rules from being overturned.
Now he will have three of them on the D.C. Circuit. Obama’s mission for Patricia Millett, Cornelia Pollard, and Robert Wilkins could not be more clear. No one should doubt that they will carry it out. The left never screws up this sort of thing.
One consequence of ending the filibuster under these circumstances is to demonstrate just how much law has become politics by other means. And a consequence of that demonstration is to further undermine the public’s trust in the judiciary and, ultimately, the law.
On balance, I consider this a good thing. Why? Because much of the important stuff that federal appeals courts do is, indeed, politics by other means, and the public needs to understand this. The more that federal judges lose their mystique, the more that realism is enhanced. The more that judicial decisions in important controversial cases are understood as ideologically driven, the better.
Not every federal appellate judge is an ideologue in a robe. Chief Justice Roberts wasn’t when he broke with his non-liberal brethren and upheld the constitutionality of Obamacare’s individual mandate, although he may have had politics on his mind. A few conservative judges on lower courts had upheld the mandate too.
Obama’s nakedly ideological use of the federal judiciary won’t turn every judge into a naked ideologue. But it may, and should, color their approach to particular cases. For example, it may cause the five non-liberal judges on the Supreme Court more actively to scrutinize the work of the D.C. Circuit, especially the work of Judges Millett, Pollard, and Wilkins.
A heavy dose of reality won’t just help the public; it may also benefit some judges.
To be clear, I don’t celebrate the fact that law has become a subdivision of partisan politics. I just think it’s a good thing that this reality is being exposed.