With the Senate back from its election hiatus for a brief lame-duck session, there is one thing that Republicans must absolutely not do: confirm any of the remaining judicial nominations of President Barack Obama still pending in that chamber.
We know that Obama’s Supreme Court pick, Merrick Garland, won’t be confirmed. Senate Majority Leader Mitch McConnell made that a central theme of the presidential campaign — that Republicans would give voters the opportunity to decide who should be on the court when they picked the next president.
To the surprise of many, Republicans senators formed a solid block in supporting McConnell and maintained this stand throughout the election. The voters have now spoken, and President-elect Donald Trump will pick the next justice.
But at last count, there were another 58 judicial nominations pending in the Senate, according to the Administrative Office of the U.S. Courts. That includes seven nominations for the federal courts of appeal (four still before the Senate Judiciary Committee, and three on the floor of the Senate); 44 nominations for district court positions (including territorial courts), of which 22 are on the Senate floor; two for the U.S. Court of International Trade; and five for the Court of Federal Claims.
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Mind you, Obama has already left his mark on the federal judiciary. Indeed, in his eight years in office, he has changed its character — and not in a good way. With a few notable exceptions, he has appointed some of the most liberal, ideological and radical judges to ever sit on the federal bench.
Obama has gotten 329 federal judges confirmed to lifetime appointments, representing almost 40 percent of the entire federal judiciary. When he took office, only one federal appellate court had more judges appointed by Democrat presidents than Republican presidents (two were tied). Today, Obama appointees have shifted control of the appeals courts to nine of the 13 circuits, increasing the likelihood, as The New York Times said back in 2014 that cases would “end up before more ideologically sympathetic judges.”
Obama’s judicial confirmations include two Supreme Court appointments, one of whom, Justice Sonia Sotomayor, has the most liberal voting record of any member of the court, according to a recent analysis by The New York Times — quite an accomplishment. Former Obama Solicitor General Elena Kagan almost tied with long-time Justice Ruth Bader Ginsburg for second place.
Anyone who doubts the progressive ideology that drives Sotomayor should read her dissent in 2016 in Utah v. Strieff, which reads like a Black Lives Matters speech, including a reference to Ferguson, Mo. She claims that “people of color are disproportionate victims” of police misconduct, thereby supporting the false narrative of the Obama administration that our justice system is filled with inherent bias and discriminatory law-enforcement officers.
It is bad enough that we’ll have to live for decades with the many judges picked by Obama throughout the federal judiciary system. We certainly don’t need to add another five dozen.
Any Republican senators who have made deals with the White House on any of the pending nominees should realize that while they may have convinced the White House to nominate someone from their state who is not quite as bad as the other judges that have been confirmed, they are still only getting the best of a bad lot.
They should realize that the election of Trump and the clear choice by voters has cancelled all deals. Their oaths of office call for an absolute and unwavering duty to preserve the Constitution and the limited government it imposes, as well as the liberties and freedoms it guarantees. And that means not confirming any more judges who will damage the Constitution even more than it has already been during the Obama presidency.
Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation.