DownWithTyranny!: How Republican Party Hyper Partisanship Is Destroying The Judiciary

KKK fanatic Jeff Sessions was rejected by the Senate for a judgeship... so now he votes against all Obama's nominees

The Senate voted Monday, just once-- but it was an important vote. Most Republicans have been dedicated to obstructing the confirmation of President Obama's judicial nominees. It's the worst instance in American history and it has a lot to do with the blatant racism of today's GOP. They-- particularly unreconstructed Confederates like Vitter (LA), DeMint (SC), Sessions (AL), Isakson (GA), Boozman (AR), Shelby (AL), Coburn (OK), Burr (NC), Cornyn (TX), and Wicker (MS), Chambliss (GA) and Inhofe (OK)-- have never accepted the legitimacy of Obama's election and have obstructed virtually every single judicial nomination he has made, even when-- as he often does-- he nominates pretty conservative characters. Paul Watford was confirmed to the 9th Circuit Court of Appeals by a 61-34 bipartisan vote on Monday, 9 Republicans having crossed the aisle and joining every Democrat, after Miss McConnell gave up on the usual filibuster nonsense.

And Watford, an African-American attorney from Los Angeles who was nominated 7 months ago, October 18, 2011, isn't some conservative shill. His nomination was widely praised, including by conservatives. One of the "problems" that bugged partisan Republicans in the Senate is that Watford, a former law clerk for Ruth Bader Ginsburg, is, at 44, young and vigorous and will have a long, long career ahead of him. That's what cooked Gordon Liu's goose and why he's not on the federal Court now. (He's on the California Supreme Court.) Republicans don't want young judges unless they're young radical right judges, fearing that they could be part of a bench for the Supreme Court.

Last December, when these same Republicans filibustered (to death) Obama's highly-praised nomination of Caitlin Halligan, an OpEd in the NY Times by Linda Greenhouse pointed out the Republican Party's perfidy and, in effect, plot against effective governance.

This was not a fight over ideology. It was an effort to keep the president from filling a seat on what is not just another appeals court. The D.C. Circuit is not just a federal court but a national one, with jurisdiction over federal regulatory initiatives and habeas corpus appeals by Guantánamo detainees. Next month, it will hear a potential landmark case on the constitutionality of the Voting Rights Act. Its caseload may not be huge, but its cases tend to be dense, tough and vitally important.

When pressed on their treatment of Ms. Halligan, Republicans typically invoke President George W. Bush’s two nominees whom the Democrats blocked from the D. C. Circuit, Peter D. Keisler and Miguel A. Estrada, both highly qualified and both prominent conservatives. (The classy Mr. Estrada wrote to the Judiciary Committee in support of Ms. Halligan, as did two dozen other members of leading law firms.)

But it seems to me that this tit-for-tat goes only so far. President Bush succeeded in putting four decidedly conservative nominees on the D. C. Circuit. Three remain there today: Janice Rogers Brown, Thomas B. Griffith, and Brett M. Kavanaugh. The fourth was John G. Roberts Jr. It was his seat, which Chief Justice Roberts vacated on Sept. 29, 2005, to which Ms. Halligan was nominated. True, the Republicans didn’t get everything they wanted. But they seem determined to make sure that President Obama gets nothing.

Across the federal judiciary, confirmation has been proceeding at a slow crawl. This week, the Judiciary Committee held a scheduled confirmation hearing that could have accommodated five nominees. But because Republican senators claimed not to be finished reading the F.B.I. files of four of the nominees, only one, Paul J. Watford, nominated for the Ninth Circuit, was able to appear for his hearing. Nominees who clear the committee without opposition have to wait months for a floor vote because the Republicans won’t agree to a speedier schedule. Of 21 nominees now awaiting floor votes, 18 had no committee opposition, but only a handful, at most, will get a vote before the Senate recesses for the year.

Just when news on the judicial front could not get more discouraging, I came across something truly bizarre, a position paper by the new front-runner among Republican presidential candidates, Newt Gingrich. Under the title Bringing the Courts Back Under the Constitution, Mr. Gingrich launches a 28-page attack on “lawless judges” who need to be reined in “if we are going to retain American freedoms and American identity.”

The document, he writes, “serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress.” By rejecting passivity, Mr. Gingrich means impeaching judges for “unconstitutional” rulings or, failing to muster the two-thirds majority necessary for impeachment, simply abolishing their positions.

Much of the document is a grab bag of long familiar right-wing talking points (Judges who acknowledge foreign law? A threat to “American sovereignty!”) It is also just plain sloppy, misspelling Justice Ruth Bader Ginsburg’s name throughout. But truly head-spinning is the tenuous hold that this screed, from a onetime history professor, has on American history.

Mr. Gingrich writes that the contemporary “power grab by the Supreme Court” is a “modern phenomenon and a dramatic break from all previous American history.” (Anyone remember the court’s response to the New Deal?) Rebuking the court for substituting its will for that of Congress is downright strange, given that it is the Republicans who have run to the federal courts, imploring judges to strike down the Congressionally enacted Affordable Care Act.

Perhaps strangest of all is Mr. Gingrich’s attack on Cooper v. Aaron, the court’s celebrated response to the Little Rock school crisis of 1958. The unanimous opinion, signed individually by all nine justices for emphasis, held that Arkansas and all other states were bound by the court’s interpretation of the equal protection guarantee four years earlier in Brown v. Board of Education. Cooper v. Aaron was, as Justice Breyer writes in his recent book, Making Our Democracy Work, essential in its time and part of the “hard-earned victory for the rule of law” that the Little Rock story became. Newt Gingrich is unmoved. Cooper v. Aaron’s assertion of the Supreme Court’s authority, he writes, was “factually and historically false.”

Thinking back to Ms. Halligan’s failed nomination, I actually don’t disagree with everything in Mr. Gingrich’s manifesto. Four words in boldface type on page 20 caught my attention: “Electing the right Senators.”