The 9th Circuit Court has some vacancies and President Trump has made nominations to fill those holes. This bypass of traditional norms comes after a Supreme Court confirmation process that deviated from many norms. Senator Feinstein was undoubtedly culpable for that. In recent weeks, the Left talks a lot about the legitimacy of the courts. In fact, to them the confirmations of Neil Gorsuch and Brett Kavanaugh represent a crisis for the legitimacy of our nation’s highest court. Michael Tomaski at the New York Times writes:
And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.
See, Tomaski doesn’t seem to realize, in his calculations, that the 17th Amendment wasn’t always a thing. The Senate was never intended to represent the will of the people. It was intended to represent the will of the states. Therefore is metric of legitimacy is entirely unfounded in our nation’s history, a complete creation of a leftist melting down over Kavanaugh. He continues to implode on this these premises.:
But I implore you to take a moment to be angry about all this, too. This is a severe legitimacy crisis for the Supreme Court.
The court, as Professor McMahon notes, was intended never to stray far from the mainstream of American political life. The fact that justices represented that mainstream and were normally confirmed by lopsided votes gave the court’s decisions their legitimacy. It’s also why past chief justices worked to avoid 5-4 decisions on controversial matters: They wanted Americans to see that the court was unified when it laid down a major new precedent.
But now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.
But of course, this talk is hardly the result of Kavanaugh whom they will paint a vehemently partisan judge. Neil Gorsuch is the thief on the stolen seat, and Merrick Garland is an angel perfectly qualified to sit on the Supreme Court. Nevermind that Merrick Garland failed a basic reading comprehension in DC v Heller. Trump and Cocaine Mitch defiled the norms, the latest norm being blue-slipping.
Initial Story
President Trump is plowing ahead to fill three vacancies on the liberal 9th Circuit Court of Appeals, brushing aside Democratic resistance to nominate conservative judges.
Presidents traditionally work with senators from judicial nominees’ home state — in this case, California — to put forward judicial picks. They often seek what’s known as a “blue slip,” or an opinion from those senators.
But in a snub to California Democratic Sens. Dianne Feinstein and Kamala Harris, the White House announced Wednesday that Trump had nominated Patrick Bumatay, Daniel Collins and Kenneth Kiyul Lee (all from the Golden State, and reportedly all members of the conservative Federalist Society) to the influential circuit. The court, with a sprawling purview representing nine Western states, has long been a thorn in the side of the Trump White House, with rulings against the travel ban and limits on funding to “sanctuary cities.”
GOP critics have branded the court the “Nutty 9th,” in part because many of its rulings have been overturned by the U.S. Supreme Court.
Any working relationship is likely only to have soured further after Harris and Feinstein led the charge on the Senate Judiciary Committee against the confirmation of now-Supreme Court Justice Brett Kavanaugh. In particular, Trump and Republicans accused Feinstein of withholding information about an allegation of sexual assault against Kavanaugh until after the hearings were over. Both Feinstein and Harris voted against Kavanaugh’s nomination, joined by all but one Democratic senator.
Solutions of the Left
Fake Conservative of the Washington Post Jennifer Rubin has this much to say about “salvaging” the Supreme Court.
In some respect, the fix for the Supreme Court is the same as the fix for our politics — leveling a right-wing populist party that abhors democratic norms and building a center-left to center-right coalition. (Some structural reforms such as ranked voting, eliminating gerrymandering and automatic voter registration would help.)
Basically, get rid of Conservatism. But at least she knows that 17th Amendment exists. This is a simplistic petty fantasy of a solution. Then there is the age old progressive trick to stack the courts. What failed under FDR, is now table talk once again. Socialist online publication, Jacobinmag, writes an apocalyptic defense of court packing. Note: he thinks the New Deal worked.
And this is the important point: with union density near an all-time low and climate catastrophe on the horizon, future lawmakers will need tools even more robust than what FDR was able to get through — think a Green NIRA on steroids. A handful of justices pulled from Federalist Society debating clubs can’t and shouldn’t get in the way of a more democratic and sustainable economy.
A thoughtful court-packing proposal would ensure that the Court more carefully reflects the mores of the time, rather than shackling democracy to the weight of the past. With inequality and human rights abuses spiraling upward and justices making it all worse, the time to begin mainstreaming an enlarged Court is now.
Ultimately, the Left’s arguments for court packing openly admit that they do not care for the process of interpreting the law or the intent of the US Constitution. They see the court as a means to protect their agenda. Take court packing argument from The Outline:
We cannot lose sight of one simple point. We — those of us left of center, who believe that the role of the courts should be to protect the weak from the powerful and not the other way around — are right and conservatives are wrong.
The New Republic isn’t as petty but they believe that the court should have a more democratic representation
Court-packing is bad, but allowing an entrenched majority on the Supreme Court to represent a minority party that refuses to let Democratic governments govern would not be acceptable or democratically legitimate, either.
Final Thoughts
The 9th Circuit Court has a terrible batting average with when it comes to the Supreme Court upholding their rulings. And that batting average is sure to crumble even lower seeing that the next SCOTUS session has multiple cases where the 9th Circuit Court is in conflict with the rulings of other appellate courts. If any court isn’t legitimate, it’s the ultra left 9th Circuit Court. Yet the issue of the Supreme Court reveals a substantially different view of the Court’s duties. The Left, dating back to FDR, believes that the Court’s job is to uphold their agenda. Don’t take my word for it, take theirs. In contrast, Conservatives believe that the court should uphold the Constitution in its original form. These are the foundations for which one from either side would determine a legitimacy crisis.
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