Some may be tempted, especially if they don’t think Harry Reid doesn’t have the votes, to give in on the nuclear option and let Owen, Brown, Pryor, et al win confirmation votes. After all, a bad judge here and there can’t make too big a difference, right? Especially on appeals courts, where there are multiple jurists, how much damage can they do?
Unfortunately, this tack is wrong. The reason the fight over judicial nominees has become so intense is not just the issues before the courts or the inevitable Supreme Court vacancy to come, but also because many courts are narrowly divided already — and one of these Bush nominees could tip the balance.
The Senate fight over President Bush’s judicial nominees isn’t just about their opinions — it is also about their destinations. The contentious choices would tip the balance in some evenly split appellate courts, or could challenge the prevailing views of other panels on issues such as civil rights or environmental policy.
Janice Rogers Brown, for instance, has made scathing assessments about the reach of the federal government — and she is nominated to the appellate court that handles the majority of appeals of government-agency rulings.
William Myers, who has advocated against environmental groups, is in line to join the appellate court that sorts through land-use battles.
William Pryor, who called a section of the Voting Rights Act “an expensive burden that has far outlived its usefulness” — may be headed for an appellate court with jurisdiction over parts of the old Confederacy.
This map helps highlight the significance of this point.
When it comes to the DC Circuit Court of Appeals, in particular, the issue of geography and balance becomes clearer. When Bush took office, there bench was “balanced” — four Democratic-appointed judges, four Republican-appointed ones and four vacancies. Bush has already filled one vacancy and is anxious to put Janice Rogers Brown on the same court. The problem is not just Brown’s radical record, but the specific court to which she’s been nominated.
The District of Columbia Circuit Court of Appeals is considered the most-important appellate court and one that has jurisdiction over much of the federal government, including environmental and labor laws.
It’s not a coincidence that Bush wants Brown not only on the appeals court bench, but this appeals court bench because Brown believes FDR was a socialist, that minimum-wage regulations should be outlawed, that the New Deal was a “socialist revolution,” and that Social Security should be equated with “cannibalism.”
It’s another piece of the puzzle that often gets overlooked. After all, as Sen. Chuck Schumer (D-N.Y.) told the WSJ, “Balance on the court matters to us. I’ve always felt a good court would have one [Justice Antonin] Scalia and one [former Justice William J.] Brennan and not five of either.”