Heritage Action Brief: No More Obama Judicial Confirmations
Background: President Obama has consistently shown a lack of regard for the separation of powers laid out in the United States Constitution. His executive overreaches have undermined not only our Constitution and the rule of law, but have also paved the way for progressive politics. Whether the issue is health care, immigration, or second amendment rights, President Obama uses his phone and his pen to enact progressive policies that the American people do not want.
For the most part, President Obama has gotten his way on a number of issues, shielded by liberal federal judges who he and Presidents before him appointed. Entering his eighth year in office, judicial appointments are at the very top of his priority list.
Reasserting Constitutional Prerogatives: Despite the President’s actions, in the last year, the Republican controlled Senate has already allowed the confirmation of 12 federal judges. Overall the President has successfully appointed 55 appeals court judges and 264 district court judges. To put this in perspective, President George W. Bush successfully appointed 62 appeals court judges and 261 district court judges. President Obama is on track to have more judicial nominees confirmed than President Bush.
The President’s damage to our constitution and the rule of law has gone far enough. Senate Republicans must use their constitutional power of confirming federal judges to reassert their constitutional prerogatives and rein in executive overreach.
Conservative Momentum Against Judicial Confirmations: At the end of 2015, Senate Republicans unanimously agreed to hold votes on five district and circuit court nominees in the new year. The first, Third Circuit nominee Luis Felipe Restrepo, was confirmed 82-6 on January 11th. In response, Heritage Action key voted the nomination of Wilhelmina Marie Wright to the Minnesota Supreme Court. This is the same liberal judge who accused President Ronald Reagan of racism and bigotry and took a dim view of property rights.
While the Senate confirmed her nomination on January 19th, 36 Republicans voted against her, demonstrating the growing momentum to stop future nominees. Even Senate Minority leader Harry Reid recognizes the progress. According to Reid, “Powerful right-wing groups announced they’re scoring votes on presidential nominations. In fact…Heritage Action said the Senate should only confirm nominees they deem – they deem, not the senators, but this right-wing cabal – that they deem worthwhile.”
36 “No” votes is a good start, but more work needs to be done. The Senate should no longer confirm any additional non-security nominees under this President in the months ahead.
Claim: Just because President Obama has engaged in executive overreach doesn’t mean Congress should engage in legislative overreach. Two wrongs don’t make a right.
Response: While the President has the power to nominate federal judges, the Constitution clearly gives power to the Senate alone to approve those nominations. In fact the Constitution calls on the President to adhere to the “advice and consent” of the Senate.
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”
Our system of government requires each branch to jealously guard its prerogatives, and President Obama routinely tramples over the legislature’s prerogatives. Senators should not stand by idly for the next 12 months. They must act to reassert their separate but equal role in our constitutional system.
Furthermore, there is a long history of the Senate ending consideration of nominees in the last few months before an election. The Thurmond Rule, for example, is an unwritten Senate rule that discourages the confirmation of lifetime judicial appointments during the last 6 months of an outgoing president. Senator Strom Thurmond used it to oppose President Lyndon Johnson’s and President Jimmy Carter’s nominations and Senator Patrick Leahy used it against President Bush during the last year of his presidency. Conservatives should act now by applying the Leahy-Thurmond Rule a few months earlier than is custom in order to restore the balance of powers and limit further executive overreach.
Claim: Senate Republicans have a duty to confirm federal judicial nominees, especially considering so many judicial seats are empty.
Response: While filling judicial seats are important, Senate Republicans have a duty to confirm not just any judicial nominee, but nominees who follow and obey the Constitution. White House chief of staff Denis McDonough admitted in January of 2016, “We’ll do audacious executive action over the course of the rest of the year, I’m confident of that.” The President’s track record has proven he cannot be trusted to obey, or nominate judges who obey, the Constitution.
While many judicial seats are empty, President Obama has filled hundreds of seats over the course of his presidency. In fact, President Obama already has more district court nominees confirmed than President Bush did at the end of his presidency. Every seat filled by an Obama appointee is a seat that can’t be filled by a Republican president.
Claim: Republican attempts to stifle judicial nominations are unprecedented in American history. Only 11 judges were confirmed in 2015, the lowest since 1960.
Response: President Obama’s judicial nominations must be taken in the larger context. President Obama has already successfully appointed 55 appeals court judges and 264 district court judges. President Bush before him successfully appointed 62 appeals court judges and 261 district court judges within his entire 8 years of office. President Obama is on track to have more nominees confirmed than his predecessor.