[Editor’s Note: With the presidential election just over a month away, and with this election being perhaps the most critical in our adult lifetimes, I may turn to political themes more often than usual in the next several weeks.]
In 2008, candidate Barack Obama promised to “fundamentally transform” the United States of America. While he was successful in ramming through Obamacare, he has failed to deliver his radical change on several levels, thank goodness.
Yet after nearly eight years as president, he has delivered on one other front by reshaping the federal judiciary. This revolution has been comprehensive, dramatic and most Americans have no idea what has happened in our federal court system.
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When Obama came into office in January 2009, liberal judges controlled just one of the 13 US Court of Appeals circuits. Some 55 successful appellate judge appointments later, liberal majorities now control nine of those appeals benches, or 70%.
So while Mr. Obama has not yet tipped the Supreme Court, his domination of the Appeals Courts and federal District Courts with liberal judges, with lifetime tenures, is nothing less than staggering and will affect important legal decisions for decades to come.
As the presidential election approaches, we hear a lot of talk in the media about how the next president could significantly rejigger the Supreme Court in the next 4-8 years, since it is widely believed that several sitting Justices will retire (or pass away) during that period.
What we don’t hear about is how President Obama has dramatically reshaped the Appeals Courts and District Courts with lifetime appointments of liberal-leaning judges. Americans need to know this ahead of the election, so that’s what we’ll focus on today.
Obama’s Liberal Judges Now Control 9 of 13 US Appeals Courts
President Obama may be struggling to tilt the balance of the Supreme Court – but that doesn’t mean he hasn’t already made his mark on the federal courts. Over the course of his two terms, Mr. Obama has appointed hundreds of judges to the lower federal courts, leading to a 70% majority of Appeals Courts now dominated by liberal judges.
While those nomination battles aren’t nearly as high-profile as they are for the Supreme Court, the impact of these lifetime appointments is just as pronounced. Previously viewed as one of the most conservative Appellate Courts in history, they have drifted significantly to the left, with Democrat appointees now outnumbering their Republican counterparts two-to-one.
Obama’s court appointees have already taken the progressive side in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving his own health reforms and carbon regulations.
These Obama appointments are really diverse; 43% of Obama’s judges have been women, shattering the old record of 29% under Bill Clinton; and 36% have been minorities, surpassing Clinton’s record of 24%. Obama has appointed 11 openly gay judges, when before him there was only one. He recently nominated the first Muslim judge but he is not likely to be confirmed before Obama leaves office.
The Fourth Circuit Appellate Court, for example, recently struck down North Carolina’s voter ID law, and also ruled in favor of a transgender student seeking to use high school bathroom facilities matching the student’s gender identity rather than biological gender.
The questions are: How did Obama get such liberal, politically correct judges confirmed; and why do we hear so little about this onslaught? Philip Wegmann over at THE DAILY SIGNAL wrote an excellent piece on just this subject in September, and I have reprinted it below.
“How Liberal Judges Took Control of 70% of US Appeals Courts
On the campaign trail in 2008, Barack Obama promised to fundamentally transform the United States of America. After nearly eight years as president, he has delivered on one front by reshaping the federal judiciary.
That revolution has been comprehensive, dramatic, and under the radar.
When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent. [Emphasis added.]
Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.
‘The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,’ Texas Supreme Court Justice Don Willett said, ‘while the 13 federal courts of appeals handle about 35,000 [cases per year].’
More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. ‘That’s a legacy with a capital L.’
Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges—seven more than President George W. Bush.
Obama didn’t push federal courts to the left by himself, though, since the Senate must confirm a president’s judicial appointments. And some conservatives complain that Senate Republicans handed over the keys to the judiciary without a fight.
‘These nominees can’t be characterized as anything but radical liberals, and the senators knew that when they were voting,’ said Ken Cuccinelli, a former attorney general of Virginia who is now president of the Senate Conservatives Fund, a political action committee.
While there’s ‘no singular explanation’ for how the majority of federal appeals judges flipped, Cuccinelli told The Daily Signal, Senate Republicans have adopted a strategy of ‘knee-jerk surrender’ on nominees.
Republican leadership balks at that characterization, arguing that they’ve spent most of their time engaging in guerilla-style campaigns against an entrenched, determined Democrat majority [from 2009 to 2014].
‘A Democrat president has been in office for eight years, most of that with a Democrat Senate, including several years of a filibuster-proof Democratic majority,’ a spokesman for Majority Leader Mitch McConnell told The Daily Signal.
While Republican opposition to Obama’s Supreme Court nominee, Merrick Garland, has remained consistent in the Senate, the strategy for appeals court nominees has fluctuated. Liberals describe it as aggressive, but conservatives belittle it as reserved.
There’s a decent case to be made for both interpretations.
A Republican minority in the Senate filibustered for months in 2013 to keep three Obama nominees—Patricia Ann Millett, Cornelia Pillard, and Robert Leon Wilkins—off the U.S. Court of Appeals for the District of Columbia.
The Senate eventually confirmed all three by narrow margins. But the GOP’s opposition was so stiff that, to overcome it, then-Majority Leader Harry Reid triggered a dramatic rule change known as “the nuclear option.” [Emphasis added.]
To overcome Republican opposition at the time, under the Democrats’ new rules federal judicial nominees can advance to a confirmation vote with the support of a simple majority of senators and without the threat of a filibuster. [Emphasis added.]
As a result, if a party holds the White House and a Senate majority, the president’s nominees are almost guaranteed confirmation.
But Republican antagonism to Obama’s nominees has not been constant.
While in the minority, Republicans often mounted little to no opposition to Obama’s court of appeals nominees. And since winning the Senate majority in the 2014 elections, Republicans have rubber-stamped two appeals justices—Kara Stoll for the Federal Circuit and Luis Restrepo for the 3rd Circuit.
As a result, Obama has fleshed out the judicial roster on the U.S. Court of Appeals, successfully appointing 55 of the 179 judges with little opposition.
Seven more of Obama’s appeals court nominees await consideration in the Senate. With a compressed congressional calendar and Election Day on Nov. 8, however, more confirmations before Obama leaves office seem unlikely.
The ideological makeup of the appeals court has more to do with justices retiring and dying off—‘the natural process of attrition’—than politics, said Carrie Severino, chief counsel for Judicial Crisis Network, a conservative legal group.
‘Obama was just very aggressive in getting those spots filled,’ Severino told The Daily Signal. ‘And it’s paid off for him, especially on the D.C. Circuit Court [of Appeals], where there have been some really important cases that have come through.’
A conservative stronghold under President George W. Bush, Severino said, the U.S. Court of Appeals for the 4th Circuit—which presides over West Virginia, Virginia, North Carolina, and South Carolina—‘is now on the cutting edge of liberal activism.’
In April, that appeals court ruled 2-1 in favor of a transgender student’s right to use the boys’ restrooms and showers in public school. Two Obama appointees, Judges Henry Franklin Floyd and Andre Davis, outvoted Ronald Reagan appointee Paul Niemeyer.
The Senate had confirmed both overwhelmingly and without significant Republican hindrance—Davis in 2009 by a vote of 72-16 and Floyd in 2011 by a vote of 96-0.
The next president could tip the balance of the four remaining circuit courts of appeals still dominated by conservatives. [Emphasis added.]
‘It’s hands down the most fateful issue of the election,’ said Willett, who is on Republicans’ short list for the Supreme Court.
‘When Americans vote in November, they’re choosing not just a president but thousands of presidential appointees, including hundreds of life-tenured judges.’” [Emphasis added.]
Conclusions – Why This Election is So Critical, Generational
President Obama successfully appointed two Supreme Court Justices, Sonia Sotomayor and Elana Kagan, both of whom succeeded liberal justices. Our next president may have the opportunity to appoint several more justices, including the replacement for the late Antonin Scalia, a staunch conservative.
If the next president appoints a liberal to succeed Justice Scalia, that will tip the Court in most decisions to a 5-4 vote in favor of the liberal agenda. Given that the next president will likely appoint a much younger judge, that 5-4 advantage for the liberal side could last for a generation.
If Senior Associate Justice Anthony Kennedy (80), a Reagan appointee in 1988, should retire or become incapacitated, the next president could replace him with a liberal judge. That could tip the High Court slant to a 6-3 vote in favor of the liberal agenda. Let’s hope not!
Likewise, if our next president is Hillary Clinton, she will certainly continue to stack the Appeals Courts and District Courts with liberal judges. As noted at the beginning, when Obama came into office, liberal judges controlled just one of the 13 US Court of Appeals circuits. Some 55 successful appellate judge nominations later, liberal majorities now control nine of those 13 appeals benches, or 70%.
If Hillary wins, she could engineer liberal control of all 13 of the Appeals Courts. That would be a disaster which could take decades to reverse, if ever.
Donald Trump, on the other hand, has presented a list of the judges he would consider for Supreme Court appointees. Most conservatives would be satisfied with any of those choices, and the balance in the High Court would remain unchanged.
The fate of the Supreme Court and the Appeals Courts alone should be more than enough to convince conservatives – including “NeverTrumpers” like the Bush family – to vote for Trump.
Think about it… seriously. The country is at stake.
For the record, I don’t like Trump, but I will vote for him.
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