Here We Go: 2020 Democratic Platform Embraces 'Structural Reform' Power Grab on the Judiciary

Posted: Aug 04, 2020 10:25 AM
Here We Go: 2020 Democratic Platform Embraces 'Structural Reform' Power Grab on the Judiciary

Source: AP Photo/J. Scott Applewhite

A recurring theme of Democratic Senate majorities over recent decades has been their unilateral power grabs in pursuit of political and ideological supremacy. This has been especially true in the realm of the judicial confirmation wars, which Democrats have repeatedly escalated. These escalations are occasionally and fleetingly regretted when the GOP turns around and deploys them in retaliatory fashion, taking advantage of new Democrat-created precedents -- but the party never seems to learn the correct lesson. Instead of seeking mutual de-escalation, they dream up new ways to seize more power and achieve their desired outcomes. We already know that if Chuck Schumer's party re-takes the upper chamber in November, as is currently expected, there's a real chance they will come gunning for the legislative filibuster -- which was viewed as unthinkable by a bipartisan consensus not too long ago.

Today, Democrats can smell a return to unified control of government and are laying the groundwork to crush a key tool of the Senate minority. Among those moving in that direction are Chris Coons, who'd previously co-authored a bipartisan letter about the importance of maintaining the filibuster, and one of the caucus's most "moderate" members, Joe Manchin. Perhaps the surest sign of Democratic intentions was Barack Obama's endorsement of the full nuclear option during his campaign speech-style eulogy at the funeral of John Lewis. Obama went out of his way to tout a major rules change to Senate procedure during his memorial stump speech (in addition to packing the Senate by creating new states), framing it as a matter of racial justice:

Here we have classic Obama. Brass-knuckles partisanship dressed up as high-minded virtue, which only cretins could oppose. Of course, he employed a similar approach in defending the filibuster while he was briefly a member of the Senate. Here's what he said at the time, when keeping that particular tool in place was widely embraced by the Left based on the relevant power dynamics:

What [the American people] don't expect is for one party - be it Republican or Democrat - to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet. The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster - if they choose to change the rules and put an end to democratic debate - then the fighting and the bitterness and the gridlock will only get worse. I understand that Republicans are getting a lot of pressure to do this from factions outside the chamber. But we need to rise above an "ends justify the means" mentality because we're here to answer to the people - all of the people - not just the ones wearing our party label...Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, this is not a good result for either party.

One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority. Mr. President, I sense that talk of the nuclear option is more about power than about fairness. I believe some of my colleagues propose this rules change because they can get away with it rather than because they know it's good for our democracy...if the right of free and open debate is taken away from the minority party and the millions of Americans who asked us to be their voice, I fear that the already partisan atmosphere of Washington will be poisoned to the point where no one will be able to agree on anything. That doesn't serve anyone's best interests, and it certainly isn't what the patriots who founded this democracy had in mind.

A high-minded, virtuous defense of the filibuster that only power-hungry cretins could oppose.  Indeed, Obama himself participated in filibusters -- including, famously, a failed attempt to block the Supreme Court nomination of Justice Samuel Alito. But he later claimed to regret that action when the political moment required him to disavow his previous stance. It's never about principle or good governance, you see; it's about power. Pure and simple. Hence Obama's fresh attack on a  supposed "Jim Crow relic" that he'd personally wielded and defended as a critical tool for the minority party and a bulwark against poisonous partisan acrimony. He said nuking the filibuster for judges and appointments -- setting aside the notion of goring the even more sacred cow on legislation -- would constitute "an end to democratic debate" typifying an "ends justify the means mentality" that wouldn't serve "anyone's best interests," including those of the founding fathers. He brought out the big rhetorical guns to oppose a narrower version of the "nuclear option," which he later supported as a matter of power. It's now clear that his entire Senate floor speech was a fraud. An expedient, faux-thunderous, defense of a maneuver he now casts as racist. Shameless.

I'll also note that Schumer and company just recently exploited this very same "Jim Crow relic" to prevent even a floor debate on a black Senator's police reform bill. But that was a good filibuster, you must understand, as opposed to the bad Republican ones. Obliterating the filibuster isn't the only plan Democrats are plotting for their expected majority. They're already discussing judicial 'reform' as a matter of official party orthodoxy, altering the platform's language to embrace another ends-oriented power grab. The New York Times reports:

Alarmed at Republicans’ success at reshaping the federal courts, Democrats plan to use their forthcoming party platform to push for “structural court reforms” to counter what they describe as a concerted Republican campaign to pack the judiciary with “unqualified, partisan judges.” The platform language stops well short of saying what those changes should be. But backers of the plank, which was added during deliberations earlier this week, said the broad statement represents a significant advance toward beginning a conversation among Democrats about how to respond to the substantial imprint that President Trump and his conservative allies have made on the federal bench...In the new platform language, Democrats say that Republicans “have undermined the legitimacy of our courts through an anti-democratic, win-at-all costs campaign that includes blocking a Democratic president from appointing a justice to the Supreme Court and obstructing dozens of diverse lower-court nominees. The Democratic Party recognizes the need for structural court reforms to increase transparency and accountability.”

Projection. The "win-at-all-costs campaign" is what Democrats have been waging on this front for decades, with Republicans finally answering in kind under Trump/McConnell. And surprise, surprise, Democrats now want to change the rules once again to suit their interests. Notice that the pretext they're using (beyond the Merrick Garland precedent, which was literally the position of Joe Biden and Chuck Schumer back when it aligned with their priorities) is that Trump and Senate Republicans have "packed" the judiciary with "unqualified, partisan judges." To be clear, court packing is what Democrats are presently entertaining. Republicans have used the existing rules -- including the precedent established by previous Democratic power grabs -- to fill existing vacancies. If Democrats are upset about that, they should be angry with themselves and their erstwhile leader Harry Reid, who foolishly triggered a "nuclear" option whose fallout has benefited the Republicans over the last three years. Instead, they're stampeding toward the next nuclear detonation. And they're not even in power yet. There's another minor issue with the "unqualified judges" argument:

Contrary to common characterizations in the press and punditocracy, President Trump's nominees have, on the whole, been quite impressive and highly qualified. While there are some notable exceptions, the qualifications of Trump's judicial nominees compare favorably with those of his predecessors...Through the first two years of his Presidency, a higher percentage of judges nominated by President Trump received "Well Qualified" ratings from the American Bar Association than any recent President save for George W. Bush, according to the Congressional Research Service (see Table 11 on page 26). As of last week, President Trump's 2019 nominees have continued this trend (based on the ABA ratings through December 4 presented here). President Obama nominated a large number of highly qualified jurists, but according to the ABA, a higher percentage of Trump's appointees were "Well Qualified."

Overall, a majority of President Trump's judicial nominees have received "Well Qualified" ratings from the ABA—80 percent of Circuit Court nominees and 62 percent of District Court nominees according to CRS. If anything, this understates the relative qualifications of Trump's judicial picks, as there are reasons to doubt the ABA's assessment of conservative nominees. Indeed, multiple peer-reviewed studies have found that the ABA evaluates Republican nominees more critically than Democratic nominees with equivalent experience. (Other research suggests there is little relationship between ABA ratings and judicial performance, as measured by reversal rates.)

That's law professor Jonathan Adler's assessment from late last year, published by Reason. Adler tells Townhall that "there has not been any drop off in the quality of nominations" in 2020, based on the (left-leaning) ABA ratings standard. In other words, the thin excuse Democrats are preemptively citing as justification for the next potential radical escalation isn't supported by the facts. But the facts are ancillary. Power, power, power.  Democrats always play dirty, and they're increasingly brazen about it. The Senate stakes are quite high.