Senate Republicans are standing up, so far, to President Obamaâ€™s attempt to pack theÂ U.S. Court of AppealsÂ for the D.C. Circuit with radical judicial activists.
A filibuster blocked a vote on the confirmation ofÂ Cornelia PillardÂ last week and ofÂ Patricia MillettÂ two weeks before that. Predictably,Â SenateÂ Democrats declared that the forthright Republican opposition was another skirmish in the â€œwar on women.â€
â€œItâ€™s a well-worn card,â€ saysÂ Sen. Chuck Grassley, Iowa Republican, of the Democratic strategy. â€œAnd they play it every time.â€ Well, not quite every time. When Republicans attempt to block confirmation of U.S. District JudgeÂ Robert L. Wilkins, who is black, to the appellate bench, Democrats will play the race card.
Opposing women and blacks is said to be part of Republican war on two fronts. Itâ€™s not war when Democrats oppose female and black nominees. Forty-three Democrats voted unsuccessfully to denyÂ George W. Bushâ€™s nominee Janice Rogers Brown to the appellate bench because she was not woman enough, just asÂ Clarence ThomasÂ was judged by Democrats to be not black enough. The Democrats guard their race and gender formulas as fiercely asÂ Coca-Colaprotects the formula for the popular soft drink.
Mr. Obama let slip theÂ gameÂ at a privateÂ Democratic Senatorial Campaign CommitteeÂ fundraiser early this month. â€œWe are remaking the courts,â€ he told them. The claim was brazen enough to make the ghost of FDR, lurking nearby, blush.
Republicans are rightly troubled by the prospect of remaking the courts by adding radical activists to a bench that doesnâ€™t even need new judges.Â SenateÂ Minority Leader Mitch McConnell says that if more judges are added to the panel, â€œthere wouldnâ€™t be work enough to go around.â€ With some other federal appeals courts having legitimate vacancies, attention should be paid to â€œwhere judges are needed and where theyâ€™re not,â€ says Sen. John Cornyn, Texas Republican, â€œAnd this court demonstrably doesnâ€™t need new judges. Itâ€™s not any more complicated than that.â€
SenateÂ Republicans must resist their natural instinct to capitulate, as they did in July by enabling the presidentâ€™s left-wing nominees to take positions on the National Labor Relations Board, theÂ EnvironmentalÂ Protection Agency and Consumer Financial Protection Bureau. Republicans retreated in the face ofÂ SenateÂ Majority Leader Harry Reidâ€™s threat to deploy the â€œnuclear optionâ€ to changeÂ SenateÂ rules on a party-line vote to strip the minority partyâ€™s filibuster rights.
Democrats argue there should be an up-or-down vote out of fairness, since no Democratic senator has expressed any reservations about these nominees. All 55 would vote in lockstep to confirm them no matter how far out of the mainstream they might be. Such an argument could be worth considering for a temporary appointment to a labor orÂ environmental policyÂ board. The stakes are higher for lifetime judicial appointments. Republicans must take great care. The D.C. appeals court is often a step to the U.S. Supreme Court.