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Do You Like Stephen Reinhardt?

I sure hope you do, because you're about to get lots more judges just like him.

Today, the man who endlessly prattles about civility and bi-partisan cooperation, Majority Leader Sen. Harry Reid, with the backing of the (current) Democratic membership in the Senate, changed the filibuster rule for judicial nominees below the Supreme Court.  In doing so, he broke precedent that I believe has been in effect in the Senate for about 200 years. To their credit, three Democratic Senators, Levin, Manchin and Pryor, voted with all Republicans against the change.

Why, you may ask, is this happening now?  As usual in Washington, and particularly with this hyper-political Administration, it has to do with raw power (remember, e.g., that we got Obamacare on a Democrats-only vote, critically facilitated by what we now know was a flagrant lie about whether Americans could keep their own policies if they liked them).

In particular, President Obama has three candidates for the DC Circuit who have been unable to clear the filibuster hurdle as it stood until today.  Among them is the cordial but ideological Georgetown Law Prof. Cornelia Pillard, who has been described as "Reinhardt in a skirt but less moderate."  The Administration has an ambitious regulatory agenda it can't get through Congress because the opposition party controls the House.  It thus plans to push through what it wants via executive orders and administrative agency rules, all of which will be challenged in court.  And the court that will decide those challenges will be none other than the DC Circuit.  My goodness!
Viewed in isolation, having judicial nominations approved by a simple majority vote strikes me as a good idea.  Democracy is, after all, about majority rule (sometimes sneered at as the "tyranny of the majority" by, for example, death penalty opponents who ceaselessly fail to win one).

The problem is that, until today, the matter has, wisely, not been viewed in isolation. The reason the Senate filibuster has its pedigree, and has been maintained by both parties for such a very long time, and through administrations of wildly differing outlooks, is the recognition that what seems like a good idea right now might later, with more time to examine its long term unforeseen effects and unintended consequences, seem less appetizing than it did at first (need I recur again to Obamacare?).

The ability to entertain that sort of thinking depends, of course, on a certain reasonably high degree of maturity.  With pugilist Harry Reid in command, that was only going to last so long, and today it went bye-bye.

Let me close for now with three thoughts.  First, this is somewhat personal to me, because two friends of mine, Peter Keisler and Miguel Estrada, were denied seats on the federal courts of appeals because of filibusters or the threat thereof, and were turned away even though they were universally known to be brilliant lawyers and honorable men. Those filibusters were eagerly, indeed belligerently, supported by Harry Reid.

Second, this power-grabbing spasm is astoundingly short-sighted.  With Obama's approval ratings now in the 30's and cratering, and the worst failures and deceptions of Obamacare yet to land on the American public, Democrats are looking for the tall grass. But there will be little tall grass to be found when the election rolls around in less than a year.  Their margin in the Senate is thin (five seats) as it stands.  Harry Reid thus stands an excellent chance of having fashioned a weapon he'll have for a year or two or three, and his opponents will have for the indefinite future thereafter.

Finally, there is likely to be immediate damage to the interests that animate this blog, and animate people who want a criminal law and procedure that keeps them safe and does not lose its nerve.  Just yesterday, we saw the Eighth Circuit act against lawless stays of execution authored by liberal district judges.  Because of the Eighth Circuit's ability and willingness to do that, we were finally able to achieve the execution, many years late, of one of the most gruesome serial killers you'd ever not want to hear about.  With the circuit courts now about to be packed with more Stephen Reinhardt's, the Eighth Circuit's example of courage and lawfulness may be among the last we'll see for a while.

Today, in other words, was a good day for raw power, but a bad one for maturity, reflection, and judicial adherence to law.


Now hold on, there, not so fast. This filibuster is different from other filibusters in that rather than objecting to specific nominees, the Republicans were taking the position that President Obama shouldn't be appointing any judges at all (at least not to the DC Circuit). That's just wrong, and deserved the smackdown it got. It's one thing to have a filibuster to protect minorities; it's another thing for a minority to abuse the filibuster by claiming the President shouldn't be allowed to govern at all. It may mean the end of the filibuster altogether, but I'm not sure that would be a bad result, particular when under the current system one or two senators can hold up the rest of the body indefinitely.

If and when the Republicans start winning presidential elections again, they can start appointing judges. Until then, elections have consequences.

Au contraire. The Dems have long taken the position that additional judges on the DC were not needed because of the workload, so that's how they justified the filibuster of Bush's DC Circuit nominees.

Why don't we start by getting that right?

As for the other issue raised by Bill, namely, the population of our courts with leftists like Stephen Reinhardt, apparently you believe that the "rule of law" is simply whatever some judge decides to do. That stems from the "elections have consequences" jab. Well, yes they do. And those consequences are not all good.

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