Barack Obama’s legacy, Part #32

Because Hillary Clinton would have nominated these federal judges had she won the election:

He has already received attention for calling Supreme Court Justice Anthony Kennedy a “judicial prostitute”; said he “strongly disagree[s]” with the Supreme Court’s decision in Lawrence v. Texas, which struck down statutes criminalizing sodomy; and criticized a school district for teaching that “homosexual families are the moral equivalent of heterosexual families,” arguing that it remains an open question. Shockingly, in May 2009, Schiff wrote that, for the same reason, he would have objected “to an anti-racism curriculum being taught in 1950s Arkansas.” Not to be outdone, Schiff provided his own take on Dred Scott—saying that the court’s dead-letter affirmation of slavery is no different from efforts to remedy segregation and increase diversity. In a 2011 law review article, Schiff said that Grutter v. Bollinger, which upheld race-conscious college admissions programs to further student diversity, repeated the same mistakes of the Supreme Court’s most infamous decisions, including Dred Scott, Plessy v. Ferguson, and Korematsu.

Besides replacing the Democratic Party machinery with a coterie devoted to his cult of personality, Barack Obama’s worst offense as president was not caring enough about the federal judiciary – a delicious irony considering how his failure reflects an institutional failure by his party. There simply isn’t a liberal or Democratic equivalent of the Federalist Society (hell, the Federalist Society would argue that most of the federal bench consists of hostile liberal peaceniks). In a depressing recent article, David Dayen points out that by this point in his first term, during which Democrats were a vote shy of a filibuster-proof majority, Obama had sent nominations to the Senate as opposed to Donald Trump’s twenty-two. The difference? “Republicans see appointing ridigly conservative judges as a central part of their policy strategy,” Dryer writes. “Obama, like Bill Clinton before him, used judicial nominations as an opportunity for bipartisan comity.” Clinton would clear nominees with Senator Orrin Hatch, who would recommend the least worst options for Republicans. Democrats play by the rules, Republicans want to set the rules on fire:

Under Obama, Senate Judiciary Committee Chairman Patrick Leahy honored the blue-slip tradition, and Republicans predictably invoked the privilege, making it impossible to nominate judges to a state with a Republican senator. Under Trump, the GOP has already talked about eliminating the blue slip rule for the circuit courts, or even doing away with it altogether. (Trump’s recent nominees, including two from states with Democratic senators, will be the true test; will Pennsylvania’s Bob Casey or Colorado’s Michael Bennet withhold support from these judges, and will Republicans honor the request?)

Why, I don’t know. Will they?

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