Courts in the balance

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.

courts

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.”

To those who are much more knowledgeable in such things, what power, if any, does a future President or Congress have, not to remove or impeach federal judges, but instead to transfer them to another circuit or district?

  • The current REGIME is ruthless!! They have plans about how they would like the US to be run. They want to go back in time where workers have NO RIGHT’S , where business can trample over anything or anyone, where they and their chosen few can RULE the common folk.
    They are mad and unless things change we will pay for it.

  • This is my greatest fear – that the Dems will back down and not follow through in keeping these heinous nominees off the bench by every legitimate means possible. All this talk of compromise is fine, but if what is compromised at the end of the day is Democratic courage and integrity then we will all be in very deep trouble.

    The answer to Bubba’s question above is that neither the President nor Congress has any power to transfer a judge once he or she is in place. The only sanction that can be applied is impeachment, and that can only applied in the most extreme possible circumstances.

    That’s what it means to be “appointed for life”, and why it’s so critical to keep fighting the good fight.

  • Donald–thanks. I could not think of anything either, but know that a number of judges in the past have been transferred, but most likely with permission. Although one could argue “appointed for life” does not necessarily prohibit transfers to a different district or circuit.

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