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Mitt v. Newt v. Rick Santorum on Judges

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Moses in front of the Supreme Court Building

Yesterday Senate Republicans filibustered an Obama nominee to the United States Court of Appeals for the District of columbia Circuit, Ms.Caitlin J. Halligan.

This is a significant defeat for the president because the D.C. Circuit is the country’s most important appellate court, and not just because it has produced so many Supreme Court nominees in recent years –the Chief Justice and also Justices Scalia, Thomas and Ginsberg– but also because it is the court of first resort when it comes to reigning in out-of-control federal agencies like the EPA. The federal administrative state runs on rules largely crafted by the D.C. Circuit, and it is good that the Senate GOP has a standard it applies that screens out far left judges headed towards that circuit.

Did yesterday’s action sunset the “extraordinary circumstances” test of the ill-timed “Gang of 14” from 2006? I hope so, but Arizona Senator Jon Kyl, the GOP’s #2 in the Senate, was my guest yesterday and he says not (The transcript of that interview, which also includes the senator’s views on whether Justice Kagan should recuse herself from the Obamacare deliberations, will be posted here later.) Senator Kyl also leaves open the possibility that a June retiree from the Supreme Court could be replaced before the next election, which is a different assessment of others who have have been considering that scenario. Again, read Senator Kyl’s take for yourself, but the sense is that an internal GOP debate is brewing over what to do if a retirement tempts President Obama to make a dash for one last Court-twisting appointment.

Which brings us to the two remaining “all hands” GOP debates on December 10 and Thursday December 15. (The Trump debate is now a rump debate and should be abandoned, even by the GOPers who said they would come.)

Can some time be carved out in these debates for the question of the courts’ role and the candidates’ nominees, and more than the call-and-response on originalism and the invocation of the Chief Justice and Justice Alito, Scalia and Thomas as fine justices. What would be useful to hear is recognition of the stakes as a closely divided court approaches an age-driven major shift in one direction or another., and a recognition by the candidates and thus an explanation to the audience of what that means.

Specifically, I would like to hear our candidates talk now about how they would advise their GOP colleagues to act on a SCOTUS vacancy should one arise in June, and the grounds they would offer for any particular course of action. A tough question, that one, but one that deserves answer. The conservative base will want an all-hands effort to stop another Obama nominee, and it isn’t too early to begin to set that debate up in the right fashion.

Part of our national predicament has been the consequence of courts injecting their own policy judgments into disputes at every level and of attempting to impose a set of cultural values on a nation far more traditional than its legal elites. A larger part of the problem is the courts’ almost radical indifference to the costs of their slow assessment of and resolution of administrative agency incompetence or delay, across a host of key issues from land use to drug approvals. The federal judiciary is slow and ineffective, self-policing in the way a gentleman’s club in London was self-policing at the height of Empire.

How are these candidates proposing to select their nominees, and how will they fight for them through an increasingly filibuster-driven institution? Will they urge the use of a nuclear option if Dems begin Round V of the confirmation wars? (The defeat of Halligan and before her Goodwin Liu, was in large part payback for Patrick Leahy radicalism and the serial filibustering of he and his colleagues while George Bush was president. Senator Kyl reminds the audience of one of the arguments advanced by Leahy back then to block a Bush D.C. Circuit appointee that the Republicans in the Senate didn’t forget and in fact used to help kill off the Halligan nomination. Sauce for the goose….)

The question of judges rarely comes up in debates because Manhattan-Beltway elite journalists long ago persuaded themselves that since they didn’t really understand what all the shouting was about on the right –“Take Kelo, for instance, how big of a deal could that have been except to the fringe?”– they wouldn’t dig into the issues surrounding the court battles, which are of course the issues fundamental to the freedoms individuals cherish and the limits on the government.”It is really all about abortion,” they concluded, and so leave the field unexamined.

But the courts matter mightily to the GOP primary voter. They would love to hear how the would-be nominees proposed to avoid being “Soutered.”

Mitt Romney and Newt Gingrich have to be prepared to lay out a vision on the courts, and Rick Santorum, already long used to Senate showdowns over judges, wold love nothing more than to have such a set of questions come up. The two front runners and the last plausible underdog could do a lot worse than argue over judicial politics on the 10th and the 15th.

Hughniverse

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