Watch the flank! Sometimes an assault on vital interests and values does not come head-on, but from an angle, on the flank. We just saw the Chinese slip a balloon across the continent, figurative knife between the ribs. Domestically, the judiciary is a flank – but it matters. Biden and Democrat Senate are loading the federal judiciary with leftists, and it matters.
In the first year of his White House, Biden got the largest number of Article III federal judges confirmed of any president since Ronald Reagan. The difference is that many of Biden’s nominees aspire to concentration of federal power.
Broadly speaking, they tend to tip against traditional understandings and caselaw tied to unfettered speech, free exercise of religion, gun ownership, traditional understandings of family, parental prerogatives, due process, equal protection, and the 4th, 5th, and 6th amendments.
His recent nominees are often openly pro-abortion, no apologies for opposing Dobbs, happy to be activists – as they think that is what courts are for, correcting errors of the Founders, Congress, strict constructionists, textualists, and those who dare to think words have meaning.
While Trump got 234 federal judges appointed, that was playing catchup after Obama’s 329 judicial confirmations. Now, continuing the leftist attack on our judiciary, Biden has pressed increasingly radical judges – and one radical justice – to the federal bench.
When a Supreme Court nominee considers is controversial to publicly define a women, simply declines to do so, something is wildly wrong with the process. Imagine Justices Sandra Day O’Connor (appointed by Reagan) or Ruth Bader Ginsburg (appointed by Clinton) not knowing what a women is.
Indeed, I think one can say – for very different reasons, but with a basic understanding of and respect for biology – O’Connor, Ginsburg, Reagan and Clinton ALL knew the difference between men and women.
Now comes the latest rash of leftist nominees. After Biden nominated 98 Article III judges in his first two years, 51 still awaiting confirmation, his left-lurching party now controls the Senate, which is in charge of judicial confirmations.
Beyond this, we face 10 vacancies on federal circuit courts – a bench that manages all federal appeals short of the Supreme Court, plus 75 US district court vacancies. An added 27 federal judicial vacancies will arise before end of Biden’s term (four appeals, 23 district).
The part that causes a shiver is not these numbers, but the under- and un-qualified nature of those being nominated to important judgeships. As one observer noted, this seems to be Biden’s means for “paying back the left-wing dark money groups who spent over a billion dollars to help elect him.” He will get the Democrat-controlled Senate to sweep a raft of leftists onto the courts.
Can he really do that? Yes and no. On the one hand, another collection of unabashed leftists is about to be swept into available openings, likely soon confirmed by the Democrat Senate, most with a rich history of working with and for leftist causes.
These include nominees proud to have worked on left-leaning cases that pushed pro-abortion, anti-gun, anti-free speech, and anti-conservative causes and cases. They include those who championed radical positions advanced by Planned Parenthood, gun control groups, and those working to punish free speech and worship.
Last week two dozen nominees got through the Senate Judiciary Committee, headed for floor votes. Among those to watch are judges like Julie Rikelman, who was the “litigation director” for the “Center for Reproductive Rights,” headed for the First Circuit Court of Appeals. She literally litigated against Dobbs, and lost.
Another to watch is Nancy Abudu, who was a litigation director for the Southern Poverty Law Center – after time with the ACLU. She is destined for the 11th Cir. Court of Appeals.
Even the typically quieter Republican National Lawyers Association spoke against her which wrote that, “Her views goes beyond…even progressive activists, and we see no reason to believe that she will be an impartial judge on the hot button’ issue of election law.”
A reality check will lower the blood pressure a bit, as these judges will not – in one fell swoop – tip the balance of these circuits, but the idea that judges who are unable to be impartial on such a basic issue as “election law” are being nominated – and confirmed – is worrisome.
In the end, the core question is – what can be done, in an age of polarized, often strangely off-the-mark thinking – to protect the federal bench from becoming, over time, radicalized?
The answer is a few important things. First, level-headed Senators can put holds on some of these nominees, tabling them for a time, if not indefinitely. This will also send a signal. For votes needed to tip the Senate balance, possibly on fossil fuels, law enforcement, support for Ukraine, and illegal immigration limitation – the point can be made to centrists like Joe Manchin: Radicals must be kept off the federal bench.
In the event that radical appointees violate ethical norms on the bench, impeachments can be initiated, driving home the point that political activism is disallowed for federal judges.
Additionally, hard-hitting hearings of nominees should be the norm, with radical, non-judicial behaviors, statements, and past actions forcing Senate Democrats to tough decisions. While accountability is hard, the effort is worthy – and even some Democrats may balk.
Last, all Americans need to think harder about the flanks. As the Communist Chinese continue testing our national security, the radical left tests our commitment to individual liberty. Good judges are “judicial” in temperament, not activist, not partisan, not political. Watch the flank!
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.