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Lesson 2: Lower Court Appointments Matter

Here is the second lesson to be learned from the debacle noted this morning.

Supreme Court appointments are critically important, but lower court appointments are important, too.

The Supreme Court is one court of nine people.  It cannot and does not correct every wrong decision rendered by lower courts.  Not even close.  The high court takes about 1% of the cases it is asked to take.  It takes a higher percentage when the Government is asking, but not all.

Bad appointments to lower federal courts can have very long-lasting effects.  The Ninth Circuit was expanded during Jimmy Carter's single term.  The appointments he made, no doubt strongly influenced by California Senator Alan Cranston, produced the notorious "Ninth Circus" that plagued the Far West for an entire generation.

One of those appointees is reported to have said, regarding the Supreme Court and Ninth Circuit decisions, "They can't reverse them all."  Whether he really said that and whether, if so, he was joking (as he claims) is beside the point.  It is undeniably true.  The Notorious Ninth commits far more errors than the Supreme Court can possibly correct, and it does so knowing that many of these decisions are contrary to what Supreme Court precedents actually require.  Even when they are eventually reversed, those errors do damage in the interim, and the interim can be a long time.

During the Bush 43 Administration, the judge-pickers had a motto of "no more Souters" for the Supreme Court, but they did not apply that principle to the lower courts.  They made some solid picks, but they made some that cannot be explained on any basis other than politics and personal connections.
Leaning in the direction that makes your own office more important is a natural tendency of all office holders.  When people who do not have a solid commitment to originalist jurisprudence and judicial restraint get appointed to the bench, they will drift in the direction of judicial activism.

Our courts lean too far in the direction of activism at present, and they lean farther than they would have if the previous Republican Administration had applied the "no more Souters" principle all the way down the line.

So, if Very Important Political Person asks for a lifetime appointment to the federal bench for someone close to him who does not have a demonstrated commitment to originalism and restraint, the answer needs to be, "Sorry, no can do.  How about Ambassador to Botswana?"  That needs to be the answer whether the seat in on the Supreme Court, the Court of Appeals, or the District Court.

Never, never, never hand out a federal judicial appointment as a political favor.  These seats are too important, and the effects of a bad choice last too long to take that kind of chance.

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