It seems pretty obvious to me that if you are upset or outraged with the ruling this week that the individual mandate in the healthcare bill is unconstitutional – a ruling made by a 20 year GOP activist now sitting for life on the federal bench – then you should care a hell of a lot about the fact that President Obama has about 40 judicial nominees who are awaiting confirmation votes by the Senate. These are not controversial figures. Every single one was voted out of the Senate Judiciary Committee, most unanimously or with only token dissent.
What incentive does Minority Leader McConnell have to let these nominations proceed? Well, none, other than the federal bench is rife with vacancies that are now slowing the wheels of justice around the country. Of course, this will quickly be solved once a Republican again sits in the Oval Office.
Here’s my prediction: while some of these nominees will end up getting a vote, many will not. And the ones that do will tend to be gray-haired judges who don’t have much chance of ever getting a Supreme Court nomination. The Senate Republicans are functionally (and strategically) cutting off the ability of Democrats to grow a liberal bench of judges who can be considered for future Supreme Court vacancies. While I don’t think it’s crucial that nominees to the Supreme Court be members of the federal bench, recent precedent has been dominated by judges. And while there were objections to Harriet Miers for many reasons, I’d expect the hue and cry from the right if a Democrat nominated someone who was not currently a judge to be deafening.
Democrats can’t let Republicans to continue to own a full branch of government. The GOP has spent decades cultivating activist judges, training them, employing them, nominating them, and confirming them. Roberts and Alito are prime examples of how the fruits of their labor have paid off: two corporatist, political, activist justices who will sit on the Supreme Court for another thirty to forty years. It’s time for Democrats to do the same thing: cultivate young attorneys, provide them training and academic opportunity, get them onto the federal bench at a young age and let them grow into future Supreme Court justices. Failure to do so means that we can expect every law of progressive bent signed by President Obama to one day be overturned by the Roberts court. That’s the game the Republicans are playing and if we don’t start playing it too, America will wind up back in the 1800s.