We can only hope that the next 4-8 years restores the balance.
During recent decades, the left’s Gramscian march has allowed it to conquer several institutions: education, media, religion, and entertainment. But at the same time, it has become clearer lately that (except for the charismatic Obama) the left has been losing at the ballot box, both on the national and state level.
At the moment, the majority of state legislatures and governors are in GOP hands. Both houses of Congress are as well, and of course the presidency.
The Supreme Court is more or less equally split, and it will probably continue to be split, with Kennedy the swing vote, once Gorsuch is seated (which I’m assuming will happen). But depending on the ability of the rest of the judges to hang in there, Trump may get a chance to tip SCOTUS into the camp of the right.
And then there’s the federal appeals court system, which is quite a different story:
When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent.
Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.
That’s a quote from an article that was written last September. We’re certainly noticing now, aren’t we? The recent decision of the 9th Circuit (which is a federal appeals court) on Trump’s EO has been very high profile indeed. The 9th has long been liberal, however; it’s not just Obama’s appointments that have tipped the 9th into that “liberal” category. But it used to be in the minority in that respect, and now liberal federal appeals courts are very much the majority.
It’s not just the appeals courts, either; the district courts were affected as well:
“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Texas Supreme Court Justice Don Willett said, “while the 13 federal courts of appeals handle about 35,000.”
More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. “That’s a legacy with a capital L.”
Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges—seven more than President George W. Bush.
The article goes on to add:
While Republican opposition to Obama’s Supreme Court nominee, Merrick Garland, has remained consistent in the Senate, the strategy for appeals court nominees has fluctuated. Liberals describe it as aggressive, but conservatives belittle it as reserved.
There’s a decent case to be made for both interpretations.
The appeals court system has become the left’s insurance policy. If it does not control the other branches of government—and it most definitely does not at the moment—it does control the remaining branch that can (and will, as we have seen) overrule the others.
And the left is very aggressive at using that potent tool. I can easily envision a situation in which lawsuits are brought in many states on a matter such as the recent challenge to the Trump EO. As we have seen with the 9th, if the left gets the right (that is, left) court, it is possible to stop a nationwide policy of the type that courts traditionally have not gone near.
At some later point such rulings can be appealed to SCOTUS, of course. But what if one more liberal justice had been on SCOTUS? That almost happened, when Justice Scalia died during the waning days of the Obama administration. SCOTUS would then have become predominantly liberal, as well. The fear of that prospect—a liberal SCOTUS—was one of the strongest motives that propelled a great many voters on the right who detested Trump to vote for him anyway.
[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]