Why Are the Democrats Handing the Judicial Branch Over to the GOP?

The Trump administration had very few achievements. Oh, they managed to destroy a lot of things like the belief in democracy, but Trump and his cronies achieved very few of their “political” goals. You didn’t build a wall. They did not repeal and replace Obamacare. You didn’t make America great. They haven’t actually done everything they promised to do except cut taxes on rich people – and put conservative judges in the judiciary. The Trump administration has been extremely successful in this one area. It left over 200 federal judges who will drive the Republican agenda long after Trump (and many people who read this column) left this mortal spiral.

So far, the Biden administration has only confirmed 14 federal judges. This is not just Biden’s fault. He has nominated 41 federal judges to fill the 82 vacancies as of Sept. 1, but Senate Democrats have been slow to ratify most of the president’s decisions. While Mitch McConnell used his Senate majority primarily as a legal confirmation machine, Senate Democrats refuse to match that level. Sure, we can blame Joe Manchin or Kyrsten Sinema or Mercury in backward or wicked Grumpkins or any other lame excuse that Democrats want to offer for their inaction. But at some point the Senate Majority Leader Chuck Schumer and Senate Justice Dick Durbin will have to give judges priority over everything else – just as McConnell did – or the Democrats will, even on this most fundamental task, women’s rights and judges Protecting people, color and the LGBTQ community of Republicans again fail.

But filling the jobs already available is kid stuff – kid stuff the Democrats don’t seem to be getting right, but it’s easy and obvious nonetheless. What Biden and the Democrats really need to do is expand federal jurisdiction and add more judges, not just for the Supreme Court but also for the lower federal courts.

Whenever a court enlargement comes up, most Democrats – and most of the mainstream media – shy away from it as if it were some brazenly partisan maneuver that delegitimized the courts. But, as I have argued repeatedly, the expansion of the courts is a form of reform, not just revenge. The enlargement of the Supreme Court is a way of depoliticizing the nominations of judges, making each individual judiciary less powerful, and thus delaying the battles for their replacement somewhere before the brink of political warfare. More judges would also lead to more moderate opinions, as it likely requires more compromise to get around 10 or 15 judges into a majority than to get five people on board.

For the lower courts, the reform argument is even stronger because there simply aren’t enough judges in those courts to do all the work. There is literally a crisis in the bank with a lack of judges, and the current situation in Oklahoma of all places makes the problem clear.

In 2020, the Supreme Court ruled that Oklahoma indigenous people who allegedly violate the law cannot be prosecuted by the state of Oklahoma. Instead, the power to prosecute and detain people who live in tribal areas falls directly under the jurisdiction of the federal government through the federal judicial system. The Supreme Court essentially upheld an 1856 treaty with the Creek Nation that gave federal and non-state authority over disputes over their land.

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