US Federal Courts: The Time is Now

What have the Federal Courts given us in the last few decades? Most tragic is that abortion-on-demand was made legal.

What has been the influence of our Presidents? Presidents Carter and Clinton were of a similar mind. Both had de facto litmus tests for their appointments. If the candidate was pro-life or pro-family, they were not nominated. These 12 years of anti-life, anti-family appointments turned the US federal judiciary sharply to the left. But then Presidents Reagan and H. W. Bush also had 12 years. Unfortunately, while many, but not all, of their appointments were constitutionally conservative, a few were real mistakes (such as Justice O’Connor). We’’ve now experienced 5-1/2 years of appointments from George W. Bush. Uniformly, he has been appointing judges who respect the Constitution and family, which has begun to make a partial change. Along with his two excellent appointments to the US Supreme Court, Roberts and Alito, we now see signs of some slow shift to the right in the federal courts.

President George Bush has 2-1/2 more years before the 2008 presidential election. What can we hope for? Sadly, the clouds are gathering. The President’s popularity is at an all-time low. This is a political virus that tends to be catching and may rub off on pro-life, pro-family candidates in the fall 2006 election. If this happens, Republicans, specifically pro-life, could even lose a majority in the Senate. Mr. Bush will be hard pressed then to be able to have pro-life nominees confirmed.

First, we must have a good nominee. Second, he or she must clear a majority vote in the Senate Judiciary Committee. Then this nominee must get a majority approval from the US Senate, barring a filibuster. The current concern is that Bush has a short window in time, i.e. from now through the balance of this year, during which to nominate and have confirmed pro-life judges. This may not be possible after January 2007 when the new Congress is sworn in. On the bright side, it could be that the Republicans and pro-lifers would maintain a strong enough Senate majority so that we would have two more years during which to repopulate the federal judiciary with pro-life judges.

At this writing, near the end of the current Supreme Court term, rumors (as usual) float around Washington DC, predicting a vacancy on the Supreme Court. The name most frequently mentioned is that of Justice John Paul Stevens, who is 86 years old. The hope is that, since he was nominated by a Republican president, he may want to retire while a Republican is still able to replace him in kind. This is a bit fanciful, as his health is quite good. If, however, he were to retire and if Bush could replace him with a constitutional constructionist, then we would have a five-member majority on the US Supreme Court, not just to reverse Roe vs. Wade, but to begin to once again reclaim some of the traditional moral values that this nation has lost under the current courts.

The Current Courts
There are basically three levels of federal courts. The lowest level is the Federal District Court. If totally staffed, there would be 678 judges in these positions. In the past, and to a large extent yet today, the Senate has generally gone along with the men and women nominated by the current president to fill these slots.

Superior to these courts are the eleven Circuit Courts of Appeal, the Federal Circuit Court and the Appellate Court of the District of Columbia. There are a total of 179 positions on these courts. When a district court judgment is appealed, it goes to one of these courts that have the authority to confirm or overrule. Since this is as far as the overwhelming majority of cases get, it is this level that largely makes and sustains laws in the US.

Finally, there is the US Supreme Court with nine members. It can overrule all of the lower court’s decisions. Furthermore, while it by tradition follows stare decisis, or past precedent, the Supreme Court has a free hand to overrule any past decisions, and in over two hundred instances in the history of the US, it has done so.

Nominations to the circuit appellate courts are of vital importance to the future of our nation, as Supreme Court replacements almost always are chosen from the appellate courts.

Let’’s therefore look at the US Courts of Appeal. As noted, there are 179 seats if all are filled. At the last count there were 16 vacancies. Of these, President Bush has nominated and sent to the US Senate names of 7 individuals. At this writing, one has gone to the Senate Judiciary Committee, which voted 10 to 8 along party lines to send that name to the Senate floor for a vote.

Today’’s Picture on the Circuit Courts
In the First Circuit, containing 6 seats, and the Second Circuit, with 13 seats, there are no vacancies.

In the Third Circuit, with 14 seats, there are 3 vacancies. No nominees have been submitted.

The Fourth Circuit has 15 seats with 3 vacancies. Terrence Boyle was nominated in February ‘05.

The Fifth Circuit, with 17 seats, has 1 vacancy. Michael Wallace was nominated in February ‘06.

The Sixth Circuit, with 16 seats, has 2 vacancies, with no nominees submitted.

The Seventh and Eighth Circuits both have 11 seats, with no vacancies.

The Ninth Circuit, with 28 seats, has 2 vacancies. William Meyers, was nominated May ‘03 and again in April ‘05. He has had a hearing, passed committee and awaits Senate floor action. Norman Smith was sent to the Judiciary Committee in December ‘05.

The Tenth Circuit, with 12 seats, has 2 vacancies. Both Neil Gorsuch and Jerome Holmes were nominated in May ‘06.

The Eleventh Circuit has 12 seats, with no vacancies.

The DC Circuit Court of Appeals, with 12 seats, now has 2 vacancies, with no nominees submitted.

In the Federal Circuit with 12 seats, there is 1 vacancy. Kimberly Moore was nominated in May ‘06.

You will recall the intense publicity one year ago when the Republicans finally faced up to the Democrat filibusters of their circuit court nominees. It was at least temporarily solved by the action of the well known “gang of 14”. This resulted in the confirmation of 11 nominees to the circuit courts and certainly influenced the two Supreme Court nominees, Roberts and Alito. The Senate confirmed these appellate court nominees almost a year ago. Recently, there has been increasing pressure on Senate Majority Leader, Bill Frist, and the Republican-controlled Senate to act on more of the waiting nominees, as there are still 16 vacancies, including 7 nominees awaiting action. We pro-life, pro-family people badly want them filled with life-affirming candidates.

A problem is that President Bush and the Senate are saying they have their hands full. They’ve been busy with the 2 Supreme Court nominees. Our job is to convince these officials (who are our servants) that there is probably nothing more important than to promptly fill these appellate court slots.

What if there is a vacancy on the US Supreme Court this year? Won’t that sidetrack all of these appellate nominees again? From retirement until the actual action by the Senate to replace a new Supreme Court nominee, including the summer recess, there will be at least three months of a window in time. During which, these waiting nominees can be brought up for Senate votes. Considering the political gridlock a Supreme Court nomination creates, this would be an uphill fight, but it should be done. Remember, we may not have the strength in the Senate next year to confirm pro-life nominees, so it must be done now.

But this would be a very public fight, and would have a great deal of publicity, with filibusters threatened. This might motivate the “gang of 14” to use the constitutional option to rewrite the Senate rules. If this happened, then only a majority would be needed in the Senate to confirm these nominees and they all could be acted upon.

My own Senator, Ohio’’s Mike DeWine, who is on the Judiciary Committee and a member of the “gang of 14”, has assured me that he will be doing everything possible to see that Bush’s judicial nominees are confirmed. If a filibuster takes place and the nominee is not an “extraordinary circumstance,” Senator DeWine said that he will be “prepared to cast a yes vote for the constitutional option to override the filibuster.”

What if this becomes a lengthy, vicious and public fight? It could actually benefit the fall elections for the Bush administration, pro-life candidates and major threatened senators like Rick Santorum and Mike DeWine. Let’s remember that many candidates on our side won in the last election, specifically because several million conservative voters were stimulated to come to the polls. Based upon the political environment today; millions of these people may stay home in November. They’ve been disillusioned by a number of things, but a major reason has been that they do not think their values have been given adequate priority by this Administration, the Senate and the House. If this turns into a rough fight, it could be a forgone conclusion that this will rejuvenate Evangelical, traditional Catholic and conservative voters, turning them out in droves in November. This could then serve to maintain a pro-life majority in both houses.

Conclusion
It is important that President Bush sends nominees to fill the existing vacancies. It is essential that Senator Frist and company bring all of these nominees to a vote in the Senate Judiciary Committee and then on the floor of the Senate. It sounds like a stretch, but if Bush wants pro-life judges, if we want pro-life candidates to win in the fall elections, all 16 appellate court nominees should be brought to Senate votes before the fall election. Nothing would do more to assure the same kind of turnout and victory that we achieved in November 2004. It can and has been done. Let’s remember that President Clinton got 54 federal judges confirmed in the 3 months prior to the 1994 elections.

Note: Since changes occur on one or more of these courts weekly, please note current numbers may differ slightly from above.

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