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News for Independent BusinessTrump is restoring constitutionality to the courts … thanks...

Trump is restoring constitutionality to the courts … thanks to Harry Reid


One of the ironies of American politics is how effectively left-wing Democrats have used – and abused – the federal courts to achieve their narrow social agenda and yet how careless they have been (thankfully) in protecting their biased interests.

President Trump has been reshaping the entire federal court system to an extent that exceeded any of his predecessors.  While previous Republican presidents have talked about the need to shift the courts back to their constitutional foundation – as opposed to so-called judicial activism based on the political zeitgeist.

Trump’s success has been based on determination.  He is the first President since Franklin Roosevelt to take serious action to change the fundamentals of the federal judiciary.  But it was not determination alone, or even luck – although that has been a factor.

Several Presidents have been afforded the opportunity to nominate three or more justice candidates – 17 to be exact.  But not so many in their first term.

Trump has already had two confirmed – and one likely to be confirmed.  It is virtually impossible for any President to exceed George Washington’s 11 nominations – but he had to fill all the seats for the first Court and a few replacements.  The second place President was Franklin Roosevelt, but he had three full terms.

Trump’s success goes far beyond the Supreme Court.  He has already appointed some 300 federal court judges – a high count for a first term President.  More than 190 of them to the federal appellate courts.  That is significant because the appellate courts operate like mini-Supreme Court in that they consider constitutionality in far more cases than reach the highest court in the land.

There is a general impression that President Obama was lax in appointing federal judges – and left a lot of openings, hoping that Hillary Clinton would be making those appointments   In fact, Obama was very aggressive in appointing justices, having placed 312 judges on the federal courts in his eight years – many more than most Presidents.

Obama did leave more than 100 open seats for Trump to fill.  But that is not the only help Trump received from a Democrat.  The thank you note should go to then Democrat Senate Majority Leader Harry Reid, who – in a crass political move to facilitate Obama appointments — changed the rules so that judges (except for the Supreme Court) could be confirmed by a simple majority instead of a two-thirds vote.  That took those votes out from under a potential filibuster.

It backfired when Republicans won the White House and retained control of the Senate in 2016.  Republican Senate Majority Leader Mitch McConnell used the new Reid Rule to start an aggressive GOP plan to appoint judges.  Citing the Reid precedent, it was easy for McConnell to then drop the two-thirds requirement for Supreme Court justices to a simple majority vote.

Without Reid’s genetic and partisan lust for power, Trump would have been hard pressed to get  Neil Gorsuch and Brett Kavanaugh approved.  If Reid had extended his bold partisan action to the Supreme Court, it is at least possible that he could have gotten Merrick Garland confirmed – and almost certain that the Kavanaugh nomination would have failed.

There is another liberal Democrat who helped Trump shape the Supreme Court.  It was Justice
Ruth Bader Ginsburg – whose age and medical history put her at risk.  In the final two years of the Obama administration, there were discussions – even efforts – to have Ginsburg resign to provide Obama with an appointment of a person who could sit on the Court for a generation.  She declined to step aside, believing that a Democrat – most likely Hillary Clinton – would be picking her successor.

There is no doubt that Ginsburg was horrified by the thought of having Trump replace her on the bench.  It even caused her to break her pledge to retire if and when she could no longer perform her duties on the Court.  It was several months before her death that she was incapable of performing those duties, but she hung on for only one reason – hopefully to outlive a Trump presidency.  She almost made it, but almost is not good enough in politics.

Trump’s unprecedented success in appointing federal magistrates can be credited somewhat to President Obama for leaving all those open seats, and to Justice Ginsburg for resisting calls to retire during the Obama administration – but the Democrat most responsible is Senator Harry Reid.

Elections have consequences, but so does changing the rules. Trump and the Republicans’ ability to reshape the federal courts for decades to come can be credited to that irascible partisan Democrat Harry Reid.  From a lifelong believer in a court that interprets the Constitution rather than legislates from the bench, I say, “Thank you, Harry.”

So, there ‘tis.

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