When the 113th Congress departs for good, many will breathe a huge sigh of relief, but none more than Supreme Court watchers of the originalism school.
Here’s an early Happy New Year’s wish for long and happy lives to all nine of the Supreme Court justices, and the genuine hope that none chooses to retire before a new president arrives. But should fatigue or fate intervene between then and now, a Senate Judiciary Committee run by incoming chair Charles Grassley of Iowa and populated by ten Republicans and eight Democrats is a much greater bulwark against activist “living Constitution” performance artists in robes than the 10-8 Democratic majority presently in place, with the gavel in the hands of Vermont’s loopy Pat Leahy.
Relief arrives because President Obama has been stacking the federal judiciary with left, farther left and far-left judges — as was his right under the Constitution. The Harry Reid Senate went along.
Now the Mitch McConnell-led Senate should shut down the conveyor belt of anti-originalist activists, and announce early on and with complete transparency that if the president wants another nominee at any level, it will have to be balanced with a McConnell-Grassley pick.
As of Friday, Obama had nominated and the Senate had confirmed 295 of his nominees to the federal bench, including of course Supreme Court Justices Sotomayor and Kagan and 53 powerful circuit court judges. (All federal judges are powerful, but the circuit judges make the law via thousands of decisions each year except for the few dozen cases that gain Supreme Court hearing and decision.)
That is just in six years. By contrast, George W. Bush in eight years saw 261 of his nominees to the federal bench confirmed, also including two Supreme Court justices — Chief Justice Roberts and Justice Alito — and 62 circuit court judges.
This is rough equity, and now Obama should be prepared for his last two years to resemble the period from June of 2001 to January 2003, when then-Chairman Leahy simply imposed an unannounced blockade on Bush’s appellate nominees in the committee. That is where the nominations of many fine, highly qualified nominees — Miguel Estrada and Carolyn Kuhl to name just two — languished, never even getting a floor vote.
And so it should be under Chairman Grassley, especially with regard to Circuit Court nominees — and of course with regard to Supreme Court nominees.
Justice Ginsburg is 81 and will turn 82 in March. Justice Scalia is 78 and will turn 79 in March. Justice Kennedy will also turn 79 next year, but in July. Justice Breyer turned 76 in August and the next oldest justice, Justice Thomas, is a full decade younger than Breyer. So if a vacancy on the highest court comes in the next two years, it could be from either the left or the right or the center-right or center-left of the court.
Justice Breyer, a strategic thinker, might very well not want to leave the choice of his replacement to the uncertainty of a 2016 Hillary victory. Ditto Justice Ginsburg, although she deflected explicit appeals to retire last spring from leftists worried about a GOP-takeover of the Senate even then.
Sen. Ted Cruz, R-Texas, wants a complete embargo on all Obama nominees, save those critical to national security, because of the president’s unconstitutional executive amnesty. This full embargo would include judicial nominees. Whether the GOP embraces that strategy, it ought to explicitly declare now that the penalty for the president’s court packing via Harry Reid’s destruction of the Senate filibuster in this Congress is that no Supreme Court or appellate court nominees will be voted on in the 114th Congress.
Obama has already made his mark upon the federal judiciary. The GOP has no obligation to let him to make it deeper or longer, and should announce as much early in the new year.
This column was originally posted on WashingtonExaminer.com.