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The Left Loves Activist Judges — Unless They Rule Right

March 31, 2019 in Economics

By Doug Bandow

Doug Bandow

The Trump administration is transforming the courts. So far the
president has made two Supreme Court appointments and won
confirmation of another 30 judges to the 13 circuit courts, which
are the final arbiters in most federal cases. After Democratic
Senate Majority Leader Harry Reid dispensed with the filibuster to
push through President Barack Obama’s lower federal court
appointments, his Republican successor Sen. Mitch McConnell
returned the favor, speeding up the approval process and lifting
the filibuster on high court nominations.

Suddenly left-wing activists noticed that courts sometimes
thwart legislatures and presidents. These progressives were shocked
and saddened to realize that democracy was being undermined. Never
before had they imagined that judicial review might stand in the
way of them imposing their preferred policies on the American
people. Obviously, conservatives must be playing politics with the
courts. Complained Joan McCarter of the Daily Kos:
“the Senate’s constitutional advise-and-consent role
has been thrown entirely out the window by McConnell.”

Of course, the Obama administration loaded the federal bench
with liberals. He placed Sonia Sotomayor and Elena Kagan, his
solicitor general, on the Supreme Court. He added 55 appellate
judges and 268 district court judges. In the main, Republican
senators disliked his nominees, but nevertheless voted for many of
the latter.

Leftists who want to
“pack the courts” should stop whining and learn from the Trump
experience – win elections and nominate good candidates.

Moreover, the Left attempted to subvert the then-soft
conservative majority on the Supreme Court. Liberals played to
Chief Justice John Roberts’ inflated view of his duty to
protect the Court from political pressures, even when doing so
undermined sound constitutional decision-making. In 2012 he flipped
from anchoring a 5-4 majority to overturn Obamacare to creating a
similar majority to uphold the law, treating the constitutional
issue as a political question. His opinion bizarrely upheld the law
based on its minor tax provisions, which were barely mentioned
during oral arguments. However, that case proved sui
generis
. Although distrusted by the Right, Roberts continued
to mostly vote with his right-leaning colleagues.

Still, the Left didn’t give up. In reviewing a new book by
Joan Biskupic, The Chief: The Life and Turbulent Times of Chief
Justice John Roberts
, Michael O’Donnell lauded the
jurist: “Roberts is the most interesting judicial
conservative in living memory because he is both ideologically
outspoken and willing go to break with ideology in a moment of
great political consequence. His response to the constitutional
crisis that awaits will define not just his legacy, but the Supreme
Court’s as well.” National Review’s
David French wrote that “the legal Left is beckoning”
Roberts “by putting him at war with himself — setting
up a …read more

Source: OP-EDS