The Right's Continued Stranglehold on the Federal Courts

Here's an alarming fact. "Because of retirements, the percentage of Republican-nominated district judges actually has gone up" since President Obama took office. For thirty years, one of the right's most insidious and successful strategies was the takeover of the federal bench. Thus we have not only the Supreme Court we have, but about 60% of federal judges appointed by Republicans nationwide. The Federalist Society was formed in 1982 specifically to bring about this conservative revolution - for many years, conservative judges had easy access to the best and brightest and a badge of true conservatism on their resume - service in Fed-Soc. So not only did the Republicans have the appointments, but they also had all-but guaranteed loyalty screening as well. This strategy is very well known and well documented, and has been for some time. Most recently, Jeffrey Toobin's huge best-seller The Nine articulated the strategy in great detail.

Once this strategy was proven to work, the left eventually caught on and formed the American Constitution Society, essentially a progressive counterpart to the Federalist Society, in 2001. But for years, people on the left never really paid as much attention to judicial appointments as those on the right. Strangely enough, I'm just not sure that's changed. Obama's abysmal confirmation rate of 47% of judges is so low that, again, Democratic retirements have outpaced his appointments by more than the rate of Republican retirements - Republican-appointed judges make up a greater overall percentage now than when Obama took office. That's insane. The problem has gotten so bad that Justice Kennedy came out last week and scolded Congress for not acting more quickly, asking whether the Senate confirmation process was "working the way it should be."

So why are the Democrats not running around with their hair on fire yelling about this? Part of it is the same reason they're not yelling about Republican obstructionism in employment, climate change, etc. It's because they just suck, and lack the courage of any conviction whatsoever. But I think at least a small part of this is just that they still haven't grasped the importance of judicial confirmations. Maybe the oil moratorium and stem cell rulings by Republican appointees, both based on questionable legal conclusions, will show them the light. But then I also thought that Republican obstructionism in the stimulus would have shown them that they should give up their pipe dream of bipartisanship, so who knows?