What Does GOP Now Want? Why, Activist Judges Of Course!


gavel - Joe Raedle.jpgThe week's headline (from The Hill, no less) says it all: "Republicans see the courts as the last line of defense vs. Democrats Agenda"

I am old enough, at the tender age of 43, to remember 1980s headlines like: "Democrats see the courts as the last line of defense vs. GOP agenda." Back then, liberals hoped the federal courts would stem the conservative tide that was sweeping through politics in the Age of Reagan. But now, in the burgeoning Age of Obama, it's conservatives and Republicans who believe an active and forceful judiciary is necessary to thwart the "tyranny" of the current majority.

So much for their old saw about "judicial activism" being such a bad thing. The same folks now tripping over themselves to get into court over health care reform were nowhere to be found during the eight years in which George W. Bush's lawyers and strategists were undermining the rule of law (over detainees, torture, domestic surveillance, and the politicization of the Justice Department, to name just a few).  

Of course, the makeup of the courts has changed greatly since the 1980s as well. Back when Democratic partisans were hoping and praying for some judicial resilience against the forces of change, there were more Democratic-appointees among Article III judges. Today, after a 21-9 year advantage in the White House since 1981, Republican-appointees are a clear majority among federal judges. It's no wonder their former patrons are calling out for help.

According to the Federal Judicial Center, there are currently 490 sitting federal judges who were appointed by Democratic presidents. There are currently 778 sitting federal judges who were appointed by Republican presidents. Those statistics suggest a rough 60-40 split-- a margin any elected official would love to have in his or her favor.

But will conservatives find the succor they seek when they bring to court their claims (on health care reform, on terrorism law, and on social issues like same-sex marriage and medical marijuana)? Dunno. Did liberals find the succor they sought when they fought against Reagan's tax reforms or the social issues of those times? Except for a few lonely cases, the answer surely is no. Kemp-Roth lived. It was not struck down.

The lesson here is that politicians always seek help from the federal courts to minimize power imbalances in Washington. Which means you ought to pay much more attention than you do now to the battles taking place over judicial nominations before the Senate Judiciary Committee. They don't just make good headlines in the present; they make for powerful consequences in the future.  

Photo credit: Joe Raedle/Getty Images




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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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