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2014 and the Courts: The Year in Preview



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Anyone can recite 2014 predictions for stocks, social media, or fashion trends. But if you want to impress the cute constitutional scholar or law clerk down the hall, you have to be on top of what will be happening in the courts and Senate Judiciary Committee this year. To assist you, I present my 2014 predictions for the intersection of law, judicial nominations, and politics.

As evidence of my prophetic prowess – or at least of my ability to guess right now and again – consider my prediction when President Obama made three nominations to the D.C. Circuit in June 2013. I warned that “by provoking a filibuster showdown with Senate Republicans, Obama is providing Majority Leader Harry Reid with an excuse to use the nuclear option to permanently eliminate the minority’s right to filibuster nominees.” The far-reaching consequences of that correct prediction play a role in many of this year’s predictions.

I begin my predictions at the nation’s highest court:

A winning season at the Supreme Court
In recent Supreme Court terms, conservatives and liberals have been trading “wins” at a fairly even pace, but 2014 will be different. As this term’s most important cases are decided over the next six months, it will be a near sweep for conservatives. Look for the president’s recess appointments, Obamacare’s contraception mandate, and aggregate limits on campaign contributions to be struck down, while prayer by legislators, state prohibitions on racial preferences, and constitutional constraints on Congress’s authority to implement treaties are affirmed.

A more partisan judiciary
Senate Democrats blame their unprecedented use of the nuclear option on unprecedented partisan division in the Senate. Well, guess what — Democrats have now ensured unprecedented partisan division in the federal courts.  With no meaningful check on who Obama and future similarly situated presidents can appoint to the courts, we will see more partisan hacks and extreme ideologues on the federal bench.

Judges as a campaign issue
More ideologically extreme nominees and no opportunity for red-state Democratic senators to hide behind cloture votes — instead, they’ll be forced to openly support or oppose Obama’s most radical nominees — ensures that the issue of judicial nominations will be front and center in key 2014 Senate races.

A rush to capture appeals courts
With control of the D.C. Circuit already achieved, President Obama and Majority Leader Reid will team up to nominate and confirm judges at an increased pace in an attempt to take over additional circuits before the possible loss of Senate control this November, a nearly 50 percent probability according to the University of Iowa Futures Markets.

A flood of regulations
The Washington Post reported last month that “The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election.” What the Post did not report is that some of the regulations were likely delayed not just with the election in mind, but also with a future takeover of the D.C. Circuit in mind. Now that Obama has succeeded in packing the D.C. Circuit — which plays a huge role in reviewing agency rules — look for a torrent of new regulations.

Increased White House power grabs
We have seen a lot of White House overreach in Obama’s first five years, but it may seem like child’s play in retrospect now that the D.C. Circuit — a key check on executive power grabs — has been neutralized. Expect to see even more outrageous executive orders and unilateral rewriting of statutes.

Decreased transparency
Also in the “I thought it couldn’t get any worse” category is my prediction for Obama-administration transparency. Before Democrats invoked the nuclear option, GOP senators could use the threat of filibustering an executive nomination to get administration documents and other information pertinent to the office the nominee would fill if confirmed. With that leverage gone, this administration will quickly cement its reputation as one of the least transparent in American history.

No Supreme Court filibuster
Nobody knows if there will be another Supreme Court vacancy in Obama’s remaining three years. But if a vacancy occurs and Democrats still control the Senate, expect the Supreme Court exception that Democrats created when they killed the nomination filibuster to fall by the wayside. There is no principled reason for the exception and the precedent of changing Senate rules with just 50 votes has already been set. Democrats created the exception just in case the next Supreme Court vacancy occurs under a GOP president.

Democratic regret
It is true that Democrats may well regret killing the judicial filibuster the next time there’s a Republican president. After all, 73 percent of all votes for judicial filibusters in Senate history have been cast by Democrats against GOP nominees. However, Democratic regret will likely come much sooner because even under Obama, Democrats have a lot more to lose than to gain under the new regime. There is not much to gain because, outside of the D.C. Circuit, judicial filibusters cost Democrats just one Obama nominee — Goodwin Liu — in five years. On the loss side, Democrats face, at the very least, more aggressive Republican use of the “blue slip,” the prerogative of each senator to block judicial nominees from his state. Depending on how much revenge GOP senators decide to exact, they can also make it much harder to confirm the 90-plus percent of nominees who are uncontroversial. Both of these costs impact far more Obama nominees than the judicial filibuster ever did.

— Curt Levey is a constitutional law attorney and president of the Committee for Justice.

 



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